Part 6	Contemporary Separations

There were a lot of families on the outside who were saying my daughter hasn’t come home, my son hasn’t come home. You had a lot of families still fighting and then you had the bloody welfare saying to these families, ‘We’re not doing what was done in the sixties’. Bomaderry Home was left open as a big secret by the government and the welfare. And it must have been one of the best kept secrets that the Government kept. It was hard for the people on the outside to prove we was there when the government said we weren’t.

My grandparents waited for me to come home and I never came home. My grandfather died in 1978 and my grandmother died in 1979. I came home in 1980. 

This was the last generation that went through the system and it really hurt. I thought our people forgot us. If Bomaderry Children’s Home was closed down at the same time those other two homes, my generation would not have gone through that. We could have avoided that.

A lot of the churches and government wanted to say that it’s all over. It happened in 1930, 1920 was when children was going through the homes. This is what they were saying in the 70s to my people that it was all over. Yet me and a lot of other Koori kids was in the bloody Home screaming, pulling our hair out, ‘Somebody come and get us’. But nobody could hear us and that was really frustrating.
Confidential submission 522, New South Wales: woman removed at 3 years in 1969 and placed in Bomaderry Children’s Home.

20 		Introduction
The fact remains that Aboriginal children are still being removed from their families at an unacceptable rate, whether by the child welfare or the juvenile justice systems, or both (Aboriginal Legal Service of WA (ALSWA) submission 127 page viii).

This Part of the report analyses contemporary separations of Indigenous children and young people from their families and communities by State and Territory mechanisms pursuant to the Inquiry’s fourth term of reference. The focus is on the processes of juvenile justice particularly detention, child welfare particularly fostering and institutionalisation, family law and adoption.

Indigenous children and young people continue to be removed from their families through laws, policies and practices of the State or Territory.

[W]hether we talk about the 1910s or 1940s or 1970s or even the 1980s, the tragic scenario is that Aboriginal children have, in large numbers, been separated from their families. In the past the dominating force was the assimilation policy. Now, it is contact with the child welfare and juvenile justice systems which leads to many Aboriginal children being removed from their families (ALSWA submission 127 page 343). 

A high proportion of people affected by the past laws, practices and policies of forcible removal have had their own children taken from them in turn. The ALSWA survey of 483 clients who were removed in childhood revealed that more than one-third (35.2%) had had their children removed (submission 127 page 44). A process of second (or subsequent) generation removal occurred in more than one in three cases.

The following chapters detail the extent and nature of contemporary separations through a consideration of the legislation, policy and practices of juvenile justice, child welfare, adoption and family law. They analyse the reasons for continuing separations and, in particular, for the fact that Aboriginal and Torres Strait Islander children and young people are at much greater risk of removal by these processes than non-Indigenous children. The facts of contemporary separation establish a need for fundamental change in Australian law and practice.

Tony
When I was three months old [in 1965] the welfare department sent the police to my grandparents’ house. They came armed with a warrant to have me removed. Despite any opposition my fate had been decided. I was taken away. My family were left with the guilt of being accused of child neglect.
In 1967 I was adopted into a white family. They had two sons of their own. It is documented that, from an early age, my adoption mother had feelings of rejection towards me. She wanted a white son. She was taking offence to me as I grew up and my skin got darker. I can remember her always making fun of me. She had a favourite song that she always sung to me. It was that old country song called, ‘the biggest disappointment in the family is you’. They adopted another son and my new brother was very fair, with blue eyes and blonde hair.
As I grew up, more problems arose. I began to notice that I was getting darker. My adoption father was often sticking up for me when my adoption brothers would come home and tease me about my colour. They were learning words like, boong, coon, abo … 
I’d ask her why I was dark.
I’d ask her why I was dark. She would tell me it was because I kept playing with aboriginal kids at school. My adoption mother would make me feel guilty when I got into trouble for something. She would confirm her statement by saying things like, ‘… if you keep playing with aborigines, you’ll end up turning into one’. I was beginning to believe that was why I was getting darker. I started to hate what I was turning into. I started to hate my own people.
In 1978 I went to high school. I was to be separated again. This time it was from my adoption brothers. They were sent to one high school and I was sent to another. When I wanted to know why, my adoption mother told me that she didn’t want me to embarrass her sons.
Towards the end of 1978, I was running away from home and truanting from school. I was sick of my adoption family. I hated my adoption mother. I wanted them to send me back to the orphanage. I wanted my real mother. I didn’t belong where I was. I just wanted to go back to where I believed my mother would come and get me one day. I committed my first offence at 11. I was trying to make my adoption family hate me so they’d send me back. I ended up back at the orphanage. When the welfare officer questioned me about my behaviour, I told him that I wanted to have my real family. He kept telling me that it was impossible. I didn’t believe him and persisted in asking for many years to follow. 
After a few months at the orphanage I was getting blamed for things that I wasn’t doing. On one occasion I was blamed for starting a fire in the building. I never did it. They wanted to foster me with white families. I ran away. I was sick of getting into trouble and I was scared about being fostered. I just wanted my real family. I couldn’t understand why they wouldn’t take me home.
[After some months on the streets in Brisbane, at the age of 13 Tony was taken into care as uncontrollable.]
While at Wilson [youth centre] I felt like I was in a prison. In my mind, I hadn’t done anything wrong to be sent there. I spent months asking what I’d done wrong. They told me that I was uncontrollable. I used to cry a lot. I kept asking the social workers to find my real mother. It was the same old story.
I ran away a few times. When I escaped I used to go to a family I’d met. They had aboriginal foster kids. I used to like going there. I felt that I had something in common with these kids. Everyone there liked me. The parents there treated me as if I was one of their own kids. I ended up getting caught and sent back to Wilson. I was depressed again. The family who I’d stayed with made several attempts at fostering me. The welfare department blocked all attempts. I didn’t know how to feel. All this time, the welfare couldn’t wait to put me into a home. Then when I found a family that I wanted to stay with on my own, they wouldn’t allow it. It was like nobody cared what I wanted. It was as if I had no say in anything. It was being arranged for me to be adopted again by another family. When I became aware of this, I did what I was beginning to do best, run away. This made matters worse. People were beginning to give up on me. I was finally sent to Boys Town [aged nearly 14].
I ran away from Boys Town several times. On one occasion that I ran away, I caught a train back up to Townsville. One of the passengers – a woman travelling with her boyfriend – took care of me. We got on real good. She had brown skin just like me. This woman kept asking me questions about who I was and where I came from. I was a runaway, so I was restricted to how much I could say, in fear of being caught. I was in love with this woman. I remember falling asleep with my head on her lap. We talked each other to sleep.
We talked each other to sleep.
The following day we arrived at Townsville station. She asked me if I had anywhere to stay. I told her no. Her and her boyfriend invited me to stay with them. I stayed only two days with them. She washed my clothes and made sure that I had a good feed. On the second day she went out with her boyfriend. I got jealous of her boyfriend and ran away when they left. 
Until the age of 28 I wasn’t aware just how close I was to finding my mother.
Later the next day I was arrested by the Townsville police. [Tony was returned to Boys Town where he stayed until he turned 15. He then found employment.]
It was a difficult time in my life. It was then that I was mature enough to realise the full ramifications of what everything was building up to. I started to convince myself that I was destined to spend the rest of my life alone. I often saw old people in the street, who were obviously homeless, and knew that that was how I was going to end up. I used to get really depressed about that. Those thoughts and feelings stayed with me for a very long time.
I was never sent back to my family. [When Tony was aged 17 his welfare officer recommended reintroduction to his birth family. The recommendation was ignored.] Nobody cared about the pain that I was feeling. So I tried my best to hide from it. Antisocial behaviour seemed the only way that I could deal with my problems for years to follow. I’ve been a loner since then.
[At 16 Tony stole a car from the family with whom he was staying and left the State. At 18 he committed a burglary and spent 10 months in prison.]
When I got out I started making contact with my adoption family by phone. It was becoming positive. My adoption mother refused me permission to go home to them when I got my holidays from work. She claimed that, ‘… dad doesn’t think it’s a good idea’. That hurt me a lot. A year later I tried to contact them again. This time my adoption father answered the phone. I rang up to wish my adoption mother a happy birthday. When I asked, ‘…is mum there?’, I was told that she had died two months earlier. It devastated me. While I was on the phone, I made it clear to my adoption father that I loved him. I felt terrible because I never got to say it to my adoption mother. I’d spent the previous two years trying to make amends.
My life fell apart once again. I became a drug addict and started to abuse alcohol and everyone around me.
[Tony was soon convicted of robbery with wounding in company. He is serving a 14 year sentence. Link-Up (Qld) located his family in 1993. His mother had died 9 years earlier. She had been the woman on the train.]
Confidential submission 82, Queensland.

21		Child Welfare – Care and Protection
The way present legislation responds … is merely allowing Aboriginal community organisations to become part of the process … There is no support for the development of genuine Indigenous child care or child welfare as, for instance, there has been in the United States under the jurisdiction of the Indian Child Welfare Act (Nigel D’Souza, SNAICC, evidence 309).

Overview
Indigenous children throughout Australia remain very significantly over-represented ‘in care’ and in contact with welfare authorities. Their over-representation increases as the intervention becomes more coercive, with the greatest over-representation being in out-of-home care.  Indigenous children appear to be particularly over-represented in long-term foster care arrangements. A high percentage of Indigenous children in long-term foster care live with non-Indigenous carers.

Over-representation of Indigenous children in care 

The following table provides an overview of the over-representation of Indigenous children in substitute care in 1993. The highest rate of placement for Indigenous children was in Victoria and the lowest was in the NT. On average Indigenous children were seven times more likely to be in substitute care than their population share would indicate. Indigenous children comprise only 2.7% of Australian children but they were 20% of children in care in 1993.

Indigenous children in care in 1993
	ACT	NSW	NT	Qld	SA	Tas	Vic	WA	Total

Total children in care	135	4,694	123	2,112	1,195	498	2,504	1,102	12,363
Indigenous children in care	12b	829	52	615	293	55	300c	353	2,419
% Indigenous children in care	8.9	17.7	42.3	29.1	17.0	11.0	12.0	34.9	19.6
% child population 
who are Indigenousa	1.0	2.1	33.7	2.0	2.0	3.5	0.7	4.3	2.7
Indigenous children in care 
per 1,000 aged 0-17 years	15	26	3	19	28	13	40	18	20
Non-Indigenous children in care 
per 1,000 aged 10-17 years	1.6	3.0	2.3	2.6	3.3	3.9	2.2	2.2	2.7

a	Figures for the Indigenous child population in each State are taken from the Australian Bureau of Statistics (1993b 1991 Census of Population and Housing, Aboriginal Community Profile ABS Cat. No. 2722.0). The Aboriginal out-of-home care and census figures could well be underestimates because of missing information in both of these counts. For example, no information was available on Aboriginal/non-Aboriginal status for 19.5% of the NSW population of children under care orders.
b 	Estimated from the percentage of children referred to care by the statutory agency.
c	The Victorian Department estimates that there are approximately 300 Aboriginal children in specialised, Aboriginal managed out-of-home care programs, with the possibility of ‘some others’ with other agencies. 

Indigenous children are much more likely than others to be ‘notified’ to a welfare department on the ground of abuse or neglect as the following table shows. 

Abuse and neglect notifications, investigation, substantiation and orders, 
1995-96
(number per 1,000 children)
	NSW		Vic		Qld		WA		SA		Tas		ACTa		NT	

						
	55	90	42	28	62	27	104	10
	16	22	14	 7	18	19	15	 9
Finalised investigations								
	Indigenous children		48	61	34	22	51	12	85	10
	All children		14	12	10	 5	14	 9	11	 5
Substantiations								
	Indigenous children		30	32	15	 9	25	 3	48	 6
	All children	 	8	 6	 4	 2	 6	 2	 5	 4
Care and protection orders, 30/6/96		
	Indigenous children		17	16	19	 8	na	 8	26	 2
	All children	 	3	 3	 3	 2	na	 3	 3	 2

Source: Government Service Provision 1997 Table 10.1 page 536.
a	The ACT rates are over-estimated due to the method of calculating the Indigenous population of the Territory.
Note:  The table does not indicate what proportion of the children were in substitute care.

Indigenous children are more likely than non-Indigenous children to be removed on the ground of ‘neglect’ rather than ‘abuse’. The graphs below contrast the proportions of Indigenous children and all children on care and protection orders nationally in 1992-93 on the grounds of neglect, sexual assault, emotional abuse and physical abuse. Substantiated cases of neglect constituted 40% of all cases for Indigenous children compared with 23% for all children.

There is broad agreement among commentators, State and Territory government departments and Indigenous organisations that Indigenous children who must be removed from their families in their best interests are best cared for within an Indigenous cultural environment. There is also broad agreement that Indigenous people have a right to look after their own children and thereby sustain their own culture. This right is expressed by most Indigenous organisations as a right to self-determination and is variously expressed by government departments as either a right to self-determination or a right to self-management. In spite of this, Indigenous children continue to be removed from their families at a disproportionate rate and continue to be placed into non-Indigenous environments including group homes and foster families (Gilbert 1993, Thomas 1994, Dingwall et al 1983).
Categories of substantiated abuse and neglect involving Indigenous children
Categories of substantiated abuse and neglect involving all children
Source:	Angus and Zabar 1995 based on 1992-93 figures provided to WELSTAT

There is also a general recognition that the underlying causes of the over-representation of Indigenous children in welfare systems include the inter-generational effects of previous separations from family and culture, poor socio-economic status and systemic racism in the broader society. These causes combine to produce cultural differences between welfare departments and Indigenous communities, substance abuse, violence, poor nutrition, alienation from social institutions including the education system, family services and the criminal justice system, limited and poor housing options and a loss of hope, particularly among younger people.

In this chapter we evaluate the role of government welfare departments and children’s care and protection legislation in the continuing separation of Indigenous children from their families and communities and in addressing the underlying issues identified.

Australian welfare systems
Powers
In each State and Territory children’s care and protection legislation authorises welfare departments to investigate allegations of child abuse and neglect and to respond with preventive measures and intervention. The grounds for intervention and removal in each jurisdiction are similar and cover categories of neglect and abuse and irretrievable breakdown in parental relationships with the child. 

In all jurisdictions the policy is to work with the family in such a way that the child will not have to be removed or, if removed, can be rapidly returned. Bringing a care application is a last resort. Preventive strategies include provision of intensive home-based care, respite care and attempts at consensual arrangements where a problem is detected. Parents may make voluntary undertakings and these may be reached in the context of a family conference. The family conference has now become an established part of welfare practice. The format, formality and range of parties involved in these conferences vary considerably. Family conferences are usually mediated by a social worker from the welfare department. They may include the child, parents, extended family, an Indigenous child care agency and other professionals such as health workers and the police.

Where removal of the child cannot be avoided, family reunion is the primary objective in all jurisdictions. Where this is totally unfeasible, family contact at least should be maintained. 

In all jurisdictions it is necessary to obtain a court order if a child is to be removed from the family under child welfare legislation, although temporary removal without a court order is lawful in emergencies. Care and protection applications are usually brought by the welfare department or the police. The proceedings take place in the Children’s Court where the order made must be in the ‘best interests of the child’. If the court finds allegations of neglect or abuse substantiated, a range of orders is available including parental undertakings, alternative care and supervision orders. Before placing a child in substitute care the court obtains an assessment report. At this point, in the case of an Indigenous child, the court may receive formal advice from an Aboriginal and Islander child care agency. Making the child a ward of the State is the last resort option. 

Welfare departments fund family based services such as intensive home-based care and respite care. They provide and fund placement services for children found to be at risk. In all jurisdictions departmental policy is to deinstitutionalise out-of-home care, look for foster care options and, where institutions are used, support small home-like environments. Several out-of-home care options are commonly used including foster care, family groups homes, hostels and kinship care.

Philosophy
Many children suffer abuse or neglect. The State or Territory has an obligation to ensure their well-being and protection. The nature of the official response, however, has varied over time according to prevailing philosophies and ideologies.

In Western terms, welfare as a form of child saving has its origins in late 19th century middle-class concerns about the ‘dangerous’ classes, single mothers and working-class families in industrialised regions of England.

Many child-savers saw poverty, destitution and the illegal activities of the lower classes as signs of biologically determined character defects. Under the influence of Lombroso, Galtin, Spencer and Darwin, the child saving movement became a moral crusade, seeking to correct and control the poor …

The system [child welfare system] has been predicated on the view that children needed to be rescued from those parents who did not have the innate qualities, right values, correct attitudes and appropriate behaviours considered to be necessary for parents to act in a ‘socially acceptable’ way (Jamrozic and Sweeney 1996 pages 26 and 90). 

In the 1970s the expectation that governments provide greater social equality and the recognition that inequalities underlie social problems gained currency. These understandings provoked a shift within welfare departments from protection to prevention and assistance. In the 1980s the re-emergence of a focus on abuse, particularly sexual abuse, in welfare work facilitated an ideological slip back into the notion of welfare workers as saviours of children from morally deficient individuals and families (Jamrozic and Sweeney 1996 page 98).

We have seen that Indigenous families were historically characterised by their Aboriginality as morally deficient. There is evidence that this attitude persists. A focus on child-saving facilitates blaming the family and viewing ‘the problem’ as a product of ‘pathology’ or ‘dysfunction’ among members rather than a product of structural circumstances which are part of a wider historical and social context (Gilbert, Thomas, Dingwall et al 1983). Indigenous families face both race and class prejudice among many welfare officers.

Indigenous efforts to retain their children
Indigenous communities have fought consistently to keep control over their children. Resistance to separations has taken various forms.
There are no studies solely devoted to opposition by Aboriginal people to the removal of their children. It is a history that demands to be written, one that would provide a fascinating and tragic account of a struggle that has been at the core of the battle for survival of Aboriginal people. It is a subject that would highlight the role of Aboriginal women – and men in the protection of the only guarantee for their survival when they had little or no material possessions and negligible civil rights. Resistance moreover, did not occur in confrontational ways alone; more often than not it was through evasive means, given the absolute lack of power of Aboriginal People ( SNAICC submission 309 page 4). 

The formation of national Aboriginal organisations in the 1960s and 1970s followed localised struggles for Indigenous peoples’ rights, including the rights of families and children. The effects of Aboriginal separations and placement with non-Aboriginal adoptive and foster carers were brought to general public attention at the first, second and third Australian Adoption Conferences in 1976, 1978 and 1982 and at the First Aboriginal Child Survival Conference in 1979.

During the 1970s the first Aboriginal and Torres Strait Islander Child Care Agencies (AICCAs) were established. In NSW the Aboriginal Children’s Services was formed in 1975. Delegates at the First Australian Adoption Conference in 1976 encouraged the formation of the Victorian Aboriginal Child Care Agency.

The Agency is geared to service delivery and community development. It aims at ultimately providing an autonomous community centred service for children, based on the notion that there already exists within the Aboriginal community, multiple and diverse resources which can be integrated into the Aboriginal Child Care Agency Program … Because it is an Aboriginal community organisation, the Aboriginal Child Care Agency can be easily sensitised to and reflective of the needs of Aboriginal families and children. This is vital as a breakdown between State welfare delivery and the participation of Aboriginal people, suspicious of programs stigmatised by child removal, has paralysed welfare operations. The Aboriginal Child Care Agency then, bridges this gap and operates outside the fear of ‘Welfare’ (Jackson 1979 page 3).
  
Aboriginal and Islander Child Care Agencies and Multi-functional Aboriginal Children’s Services (MACS) are the two main Indigenous, community based, child care service providers in Australia. There are now approximately 100 such services across Australia. AICCAs fulfil a number of roles including provision of preventive services, involvement with children and youth under care and protection orders and provision of foster care and adoption services.  MACSs provide services for 0 to 5 year olds including health services, child care, respite care, nutritional meals and play groups in one location. ‘MACS offers a vital opportunity for early intervention and preventative assistance to take place’ (SA Aboriginal Child Care Agency submission 347 page 27).

Welfare efforts to include the needs of Indigenous clients
State and Territory welfare departments have recognised that a very high proportion of their clients are Indigenous families and children. The historical and socio-economic context of Indigenous families and children and the nature of welfare practice leave Indigenous children at greater risk than any others of removal from their families and communities. In evidence to the Inquiry State and Territory governments stressed the need for Indigenous communities to exercise greater control over their children’s welfare.

The essence of self-determination in this context is an understanding that only Aboriginal people can find solutions to the problems which confront them, and that Aboriginal people have the right to make decisions concerning their own lives and their own communities and the right to retain their culture and develop it.
  
Collaborative decision making, co-operation and consultation between the Department of Families, Youth and Community and Aboriginal and Torres Strait Islander agencies are key themes guiding current protection policy and practice. (Queensland Government final submission page 18).

The NSW Government stated that its policy on Aboriginal Affairs ‘is based on a philosophy of Aboriginal self-determination and will promote Aboriginal esteem in both Aboriginal and non-Aboriginal communities’ (NSW Government interim submission page 111).

It is considered necessary that an Aboriginal program have the power to name its own components … For example the concept of Foster Carer is not readily translated from mainstream to Aboriginal society. Aboriginal people do not think of themselves as foster carers for children of their own kinship or other Aboriginal children. There are also some distasteful associations with terms such as foster care, foster parents etc … (WA Government submission Attachment 4 page 12).

Similar statements are found in each State and Territory Government submission (SA Government interim submission page 32, Victorian Government interim submission page 32, Tasmanian Government final submission page D-38, NT Government interim submission pages 58-9; see also ACT Government submission page 4).

The rhetoric of self-management, however, has not been matched by practical measures. The administrative, executive and judicial decision making about Indigenous children’s welfare are controlled by child welfare authorities. Although Indigenous organisations in some jurisdictions have a right to be consulted, this typically occurs only at the final stages of decision making about a child, when recommendations are being made for a placement in substitute care.
In general, my impression is that the welfare authorities are most willing to encourage Aboriginal people to participate in ways that do not involve a major shift of power and responsibility (Chisholm 1985 page 8). 

Decision making about Indigenous children’s well-being falls well short of accepted notions of self-determination. Moreover, it continues to fall short of government claims of ‘partnership’ and  ‘collaboration’. 

Welfare departments have made changes to their practices in an effort to reduce cultural biases leading to Indigenous over-representation. One common strategy has been to establish an Aboriginal section of the department. This strategy has been criticised on the ground that the section is ‘ tacked on to the system, without altering its philosophy, structures, practices or processes’ (Thomas 1994 page 40). 

Accompanying the establishment of Aboriginal sections have been increased employment of Indigenous staff and an attempt to enhance the cultural sensitivity of existing staff and procedures. Each of these strategies also has its critics.

Indigenous organisations criticise the incorporation of Indigenous staff into welfare departments on the ground that these talented people cannot simultaneously be community resources. Public service employment inhibits the capacity of Indigenous staff to represent and advocate for their communities. Funding to employ a community member as a community development worker would frequently be preferred. Ideally both should be ensured as State and Territory administrations have a responsibility to provide appropriate and accessible services to all clients.

During the 1980s and 1990s there has been growing awareness of the problems of cross-cultural service delivery and of the need for cross-cultural training. However, the goal of culturally appropriate service delivery remains elusive. Policy statements from head office do not translate into practice in the field. Popular cross-cultural training models have limitations.

Reliance on a view of culture as fixed rather than dynamic, and the tendency to stereotype whole groups by virtue of their ethnicity are the drawbacks of the simple pluralist model. Its promotion in the late 1970s and through the 80s – a highly successful enterprise – was largely achieved via a decade of so called ‘cultural awareness’ training, achieved through a ‘cultural differences’ approach. This is a process whereby you come to understand different ethnic groups by learning how they behave, eat, celebrate, raise their children and bury their dead. All these practices are quaint, interesting or even unbelievable: ultimately however, they serve to underline distinctness. This approach encouraged, even depended for its success, on the kind of generalisation that also leads to stereotyping of a negative kind (Kalowski 1992 page 4).

The single most significant change affecting welfare practice since the 1970s has been the acceptance of the Aboriginal Child Placement Principle.

In the hard copy version of this report there is a reproduction of the following item:
Kevin Portamini, Nguiu, NT

Courtesy Heide Smith.
Aboriginal Child Placement Principle: 
State and Territory review

All Australian jurisdictions now recognise, either in legislation or policy, that, when Aboriginal or Torres Strait Islander children are to be placed in substitute care, they should be placed within their own culture and community where possible. Each jurisdiction also recognises that Indigenous people should be consulted about placements.

In four of the eight jurisdictions the Aboriginal Child Placement Principle (ACPP) is established in legislation. In two jurisdictions the involvement of Indigenous organisations, notably Aboriginal and Islander child care agencies (AICCAs), is also defined by legislation.

[Unless otherwise stated the information and data detailed below were provided by governments in submissions to the Inquiry. For ease of reference we include recent data on Indigenous children in care for each State and Territory.]

New South Wales
Under the Community Welfare Act 1987 (NSW) the Director General of the Department of Community Services has ultimate power to place removed children.

Section 87 of the Children (Care and Protection) Act 1987 prescribes the ACPP’s preferred order of placement. If the child cannot remain with his or her current carers placement with the extended family as recognised by the child’s community must be explored. If that is not possible, then placement with another Aboriginal person from the child’s community should be explored. If that is not possible, then placement with a member of an Aboriginal family residing in the vicinity of the child’s usual home should be explored. Finally, if none of these options is practical or if they would be detrimental to the welfare of the child, placement with a person considered suitable by the Director General may be made. The last option is only to proceed after consultation with the child’s extended family and such ‘Aboriginal welfare organisations’ as are appropriate in relation to the child.

Indigenous children constitute 2.1% of the children in NSW yet they made up between 7.7% and 9% of notifications for neglect or abuse over the period from 1991-92 to 1994-95. Indigenous children have been between 3.5 and 4.5 times over-represented in notifications to the Department of Community Services. Indigenous children make up 21.3% of children in substitute care, approximately eleven times over-represented. The large increase in over-representation from the point of notification to substitute care orders is consistent with national trends.
Indigenous children in substitute care may still be placed in non-Indigenous care as the following table shows. However, there has been a recent quite substantial reduction of the use of non-Indigenous care for Indigenous children in NSW.

Non-Indigenous care for Indigenous children in care: NSW
	1990-91	1991-92	1992-93	1993-94	1994-95	1995-96	
% in non-Indigenous care	25.2	23.1	19.7	17.5	17.1	10.0	

South Australia
In South Australia the ACPP is set out in section 5 of the Children’s Protection Act 1993. This provides that no decision or order about where an Indigenous child is to reside can be made until the department has consulted with a recognised Indigenous organisation. The Minister is required to consult with the Indigenous communities before ‘recognising’ an Indigenous organisation. These organisations are then gazetted for the purposes of participation in decisions under the Act. By 1995 22 organisations had been gazetted. The Act stipulates that not only must a recognised organisation be consulted but also that proper consideration must be given to its submissions. The venue and nature of the consultations are to be as ‘sympathetic to Aboriginal [or Torres Strait Islander] traditions as is reasonably practicable’. Family care meetings are provided for in the Act with a view to involving families in decision making about the care and protection of their children at risk (sections 27 and 28). A recognised organisation will also be involved.

Section 5(2) A person or court, in making any decision or order under this Act in relation to an Aboriginal or Torres Strait Islander child, must, in addition to complying with the requirements of section 4, have regard – 
(a)	to the submission made by or on behalf of a recognised Aboriginal or Torres Strait Islander organisation consulted in relation to the child; and
(b) where there has been no such consultation – to Aboriginal traditions and cultural values (including kinship rules) as generally expressed by the Aboriginal community, or to Torres Strait Islander traditions and cultural values (including kinship rules) as generally expressed by the Torres Strait Islander community, as the case may require; and
(c) to the general principle that an Aboriginal child should be kept within the Aboriginal community and a Torres Strait Islander child should be kept within the Torres Strait Islander community.

The ‘requirements of section 4’ are to be observed when dealing with all children. They are that the safety and best interests of the child must direct all decision making under the Act, that serious consideration be given to keeping a child within his or her family and neighbourhood, preserving their religious, cultural, racial and ethnic identity and, taking into account the child’s age and maturity, that serious consideration be given to his or her opinion, among other matters. Section 42 also places weight on preserving and enhancing a child’s racial and cultural identity.

The order of placement preferences is set out in a departmental Practice  Paper.

• 	In the child’s home locality, with members of the extended family, or the same tribal language group, or another Aboriginal family,
• 	In a family group home or hostel run by an Aboriginal family, in the child’s home locality for short term placements,
• 	In a different locality, with members of the extended family, or the same tribal language group, or another Aboriginal family,
• 	In a foster home, family group home or hostel run by a non-Aboriginal family which is sensitive to the special needs of Aboriginal children, preferably in the child’s home locality ( Practice Paper December 1993 page 1).

Indigenous children constitute less than 2% of all children in South Australia yet they constitute around 8% of children about whom the department is ‘notified’ (that is, about whom it is alleged they have suffered abuse or neglect) each year, a fourfold over-representation.

Notifications of SA Indigenous children
1992-93	1993-94	1994-95	
7.1%	8.2%	8.0%	

The extent of Aboriginal children’s over-representation increases with further interventions after notification. Aboriginal children constitute 14% of departmental case loads, 10% of substantiated abuse cases and 17% of children under the guardianship of the Minister (that is, State wards). As at June 1995 Aboriginal children constituted 17.1% of all children in substitute care.

A study of Aboriginal children in long-term foster care in SA in 1988 found that at least 25% of all children in this care were Aboriginal (although departmental records appeared incomplete). Just over one-half (54%) of Aboriginal children in long-term care were placed with non-Aboriginal foster parents and 51% had been in a long-term placement for four or more years. Just over one-third (37%) of the children in non-Aboriginal foster care were experiencing some negative or bad feelings about their Aboriginality whereas two-thirds (65%) of non-Aboriginal foster parents did not perceive racism as an important problem for their foster child (SA Aboriginal Child Care Agency Forum Inc 1988 pages 9, 10 and 17).
South Australia is still lagging behind national rates in the utilisation of Indigenous carers for Indigenous children in out-of-home care. Only 67% of children in such care were placed with Indigenous carers (Government Service Provision 1997 page 554).

Northern Territory
Like the NSW legislation, the NT Community Welfare Act 1983 includes a presumption in favour of the ACPP. Section 69 obliges the Minister to ensure that every effort is made to place the child within his or her extended family. If this placement cannot be arranged to the Minister’s satisfaction, placement with Aboriginal people who have the correct relationship with the child in accordance with customary law is the second preference. 

Alternatives may be considered only where a placement according to either of these preferences would endanger the welfare of the child. At this stage the child’s parents, other people with responsibility for the child’s welfare under customary law and Aboriginal welfare organisations as are appropriate in the case of the particular child must be consulted. The aim is to find a placement that is in the best interests of the welfare of the child. In addition to consultations, the department must take the following factors into consideration in selecting a placement,
•	 preference for custody of the child by Aboriginal persons who are suitable in the opinion of the Minister,
•	 placement of the child in geographical proximity of the family or other relatives of the child who have an interest in, and responsibility for, the welfare of the child, and
•	 undertakings by the persons having the custody of the child to encourage and facilitate the maintenance of contact between the child and the child’s own kin and culture.

The NT welfare department requires workers to apply the ACPP in all cases and to prioritise cultural continuity. The Act further obliges the Minister to provide support and assistance to Aboriginal communities and organisations for the welfare of Aboriginal children and families, including the training and employment of Aboriginal welfare workers (section 68). However, no powers or functions under the Act are delegated to Aboriginal organisations. The final decision about placements rests with the welfare department alone.

The ACPP has been legislatively recognised for over a decade in the NT. It is the jurisdiction with the lowest level of over-representation of Aboriginal children in substitute care.

Victoria
Decisions about children’s welfare and child placement in Victoria are made in a process known as ‘case planning’. The Children and Young Persons Act 1989 (Vic) requires the welfare department to involve ‘relevant members’ of the child’s Aboriginal community in case planning (section 119(1)(m)(i)).

Placement of an Indigenous child must be with a member of the child’s community unless such a person is not reasonable available. In that case the child is to be placed with another Aboriginal person.

In the event that no Aboriginal carer is reasonably available for the child, a non-Indigenous carer may be selected. The approval of an Aboriginal agency must be obtained before such a placement can proceed (section 119(2)). As in South Australia, Aboriginal agencies are accredited for the purposes of the Act. The Victorian Aboriginal Child Care Agency (VACCA) is the most notable example.

In 1992 a protocol between the Department of Health and Community Services (CSV) and VACCA was signed. It reiterates that CSV has statutory responsibility in relation to child protection services for all children in Victoria under the age of 17 years. While the protocol does not delegate authority to VACCA, it affirms VACCA’s right to be consulted and involved from the point of notification (that is receipt of an allegation regarding an Indigenous child’s well-being) and that VACCA should be invited to all case conferences. 

VACCA must be involved in all significant decisions made about an Aboriginal child. The Act lists the following significant decisions:

•	decisions made in the course of investigations conducted after a notification is reviewed,
•	decisions made in the course of preparing a protection report or disposition report,
•	decisions made in assessing whether or not a protection application should be made,
•	decisions relating to the placement or supervision of the child whether made before or after a protection application or protection order is made, and
•	the holding of meetings for the purpose of formulating a case plan (Children and Young Persons Act 1989 section 3).

No Aboriginal child is to be placed without VACCA’s involvement in the decision although the department retains final decision making power. However, the Inquiry was told that VACCA is frequently not involved in decision making until very late in the process, sometimes only after the child has been in substitute care for more than two years (VACCA evidence 335). 

The protocol also provides for CSV to contract out to VACCA the case management of an Aboriginal child on a protective order on a case by case basis. It also provides for mutual co-operation in training staff and a dispute resolution mechanism.

In addition to approving or vetoing the placement of an Indigenous child with a non-Indigenous carer, the agency has a role in the court process. A court cannot make a permanent care order for an Aboriginal child until it has received a report from an Aboriginal agency (section 112). VACCA advised the Inquiry that it is very reluctant to recommend permanent placements because they are contrary to the objective of family reunion (evidence 335). The court, however, is not bound to follow the advice of the agency.

Indigenous children constitute approximately 0.8% of all children in Victoria. In 1994 Indigenous children made up 8.7% of CSV clients. In 1994-95 Aboriginal children were three times more likely to be notified to the department than other children and as at June 1995 they were five times more likely to be on a protection order. As at 30 June 1994 Aboriginal children were twelve times more likely to be involved with placement and related support services than other children. Indigenous children are seriously over-represented at all stages of intervention and their rate of over-representation increases as the degree of intervention increases. 

The rate of Victorian Indigenous children’s over-representation in substantiated cases of neglect and abuse is similar to the national average for all children. However, the over-representation of Indigenous children in out-of-home care in Victoria far exceeds the national average for both non-Indigenous and Indigenous children in out-of-home care. The average out-of-home placement rate for children in the general population is 2.7 per 1,000. The rate of placement of Victorian Indigenous children in out-of-home care was 40 per 1,000 (Bath 1994 page 7).

Almost 80% of Indigenous children in out-of-home care in Victoria were placed with Indigenous carers at the end of June 1996 (Government Service Provision 1997 page 555).

Western Australia
Approval for the selection of placements for Aboriginal children removed from their families rests with the Director General of the State welfare department in WA. The ACPP is not specifically spelt out in legislation or policy but is covered by a general statement, inserted in 1984, under the heading of ‘Substitute Care Policy in Relation to Aboriginal Child Placement’. The ‘principles of Aboriginal children’s welfare’ are said to recognise the importance of customary roles and responsibilities of the Aboriginal extended family in child rearing. In pursuit of this objective, the maintenance of the child within his or her own family and community is to be the first priority of the department. The Principles are,
  
•	… To acknowledge the importance of maintaining and promoting the relationship between the child, the parents, guardians or persons having the custody of the child (and where appropriate, the extended family of the child).
• 	To maintain the continuity of living arrangements in the child’s usual ethnic and social environment.
• 	To consult with the child’s parents and other persons with responsibility for the welfare of the child in accordance with Aboriginal customary law; and such Aboriginal organisations as are appropriate in the care of the particular child.
• 	To encourage Aboriginal control in matters relating to the welfare and care of Aboriginal children and practice sensitivity and have respect for Aboriginal cultural issues in providing child welfare services to Aboriginals.
  
The policy directs the department that ‘[o]ther than in serious crisis situations, child removal should be a planned and co-ordinated action based upon a case conference which includes consultation with relevant Aboriginal organisations/community persons’.

The policy offers no guidance on the order of priority for placement decisions or on the weight to be placed on cultural factors. While the department claims that the ACPP is put into practice through its close working relationship with Aboriginal child care organisations, the Inquiry received evidence of strained relations or non-existent relations in some areas (ALSWA submission 127 page 324, Broome and Derby Working Groups submission 518 page 3, Kimberley Land Council submission 345 page 28). 

Indigenous children constitute approximately 4.3% of children in WA. In June 1994 they constituted 34% of all children in care. They are therefore approximately eight times over-represented in care orders.

Thorpe analysed 325 cases arising in WA between March and June 1987. He found that Indigenous children represented 23% of all neglect/abuse notifications and 32% of substantiated allegations. Further, substitute care was the outcome in substantiated cases for 52.5% of Aboriginal children compared with 22.5% of other children. ‘The more coercive and intrusive the child protection operation becomes, so the over-representation of Aboriginal children increases’ (Thorpe 1994 page 161). 

WA recently reported that about 85% of Indigenous children in out-of-home care in the State were placed with Indigenous carers at the end of June 1996 (Government Service Provision 1997 page 555).
Queensland
The ACPP was adopted as the policy of the Queensland welfare department in 1987, having been adopted in draft form in 1984. If placement in accordance with the ACPP is not possible then arrangements which allow for a continuing relationship with parents and community should be developed. O’Connor reviewed the implementation of the Queensland policy for the Royal Commission into Aboriginal Deaths in Custody. He found ignorance of the policy and/or of its significance among departmental staff and identified an urgent need for statutory recognition of the ACPP and for the development of Aboriginal care and support systems. The relevant legislation, the Children’s Services Act 1965 (Qld), is currently under review.

Indigenous children constitute approximately 2% of Queensland children. The table below illustrates the proportion of children on care and protection orders who are Indigenous.

Indigenous children on care and protection orders in Queensland
1992	1993	1994	1995	
27.4%	27.2%	26.4%	25.6%	

Indigenous children were approximately 13 times over-represented in care and protection orders in Queensland between 1992 and 1995. Indigenous children’s representation in substitute care is higher again with Indigenous children constituting 29.1% of all children in substitute care.

Tasmania
The Aboriginal Child Placement Principle is set out in the Tasmanian Family Services Operational Manual 1993. The Manual uses the wording adopted by the 1986 Social Welfare Ministers’ Conference.

When a child is to be placed outside his/her natural family, the Family Support Worker in the Aboriginal Centre, Family Support and Care Program must be contacted prior to placement.

The order of priority of placement should be:
A member of the child’s extended family.
Other members of the child’s Aboriginal community who have the correct relationship with the child in accordance with Aboriginal customary law.
Other Aboriginal families living in close proximity.
  
This order of priority of placement is to be followed in the absence of good cause to the contrary at all times.

Departmental policy in Tasmania is to provide resources and engage the assistance of community organisations in the implementation of the ACPP. The Tasmanian Aboriginal Centre runs the Aboriginal Support and Care Program mentioned in the Operational Manual. The Centre advised the Inquiry that the department contravenes the policy by failing to notify it of Aboriginal children in care (submission 325 page 13).

Indigenous children constitute approximately 3.8% of the child population in Tasmania. The following table shows Indigenous children made wards of the State as a proportion of total children made wards of the State.

Indigenous State wards in Tasmania
1991-92	1992-93	1993-94	1994-95	1995-96	
7.6%	9.4%	17.9%	10.4%	3.4%	
 
In 1995-96, for the first time, Indigenous children were not over-represented in wardship statistics. At the same time, however, as at June 1996 Indigenous children were still over-represented among all children on care and protection orders (8.4%). 

ACT
Although the ACT Government supports the ACPP in principle, the ACPP is not included in the Children’s Services Act 1986 (ACT) which governs fostering. The legislation is currently under review and the Government expressed its commitment to include the ACPP in the new legislation (interim submission page 24). Neither the ACT welfare department nor any of the five non-government fostering services has been successful in recruiting any Aboriginal or Torres Strait Islander foster carers.

Indigenous children constitute approximately 1% of all children in the ACT. In 1994-95 Indigenous children constituted approximately 4.7% of abuse and neglect notifications and 7% of care and protection orders. This increasing over-representation with level of intervention is consistent with patterns in other jurisdictions.

Evaluation of the ACPP
Recognition of the ACPP has marked a great shift in child welfare practice. Indigenous people, however, cannot control its implementation. They are not assisted or permitted to determine the destiny of their children.

Incomplete legislative recognition
Despite government acceptance, the ACPP is still not legislatively recognised in Tasmania, WA, Queensland and the ACT. Legislative recognition has been recommended to governments on numerous occasions and in a range of reports and forums including the Australian Law Reform Commission report The Recognition of Aboriginal Customary Laws (1986). In 1986 the Council of Social Welfare Ministers’ Conference passed a resolution supporting the ACPP. Recommendation 54 of the Royal Commission into Aboriginal Deaths in Custody called for legislative recognition of the ACPP and the role of AICCAs and all State and Territory governments have agreed to implement it. Only two States, Victoria and South Australia, have done so in full.

Inadequate consultation with AICCAs
The widespread acceptance of the ACPP has led to greater recognition of the importance of Indigenous children’s cultural needs and to improved consultation processes with Indigenous people and agencies. In all jurisdictions Indigenous agencies in theory have an opportunity to advise on child welfare matters affecting Indigenous children. This advice is given, however, within an established bureaucratic framework that has its own requirements and approaches.

The legislative base which underpins the functions of departmental officers in relation to child abuse is neither an adaptation nor a reflection of Aboriginal Traditional law. Thus, the very basis of definitions of responsibility of individuals involved in ensuring child protection is culturally biased and should be recognised as such  (Harrison 1991 page 37).

The extent and style of consultation varies across jurisdictions. In Victoria, legislation acknowledges the importance of Indigenous organisations’ advice and their right to offer an opinion. VACCA has a right to veto placement of an Indigenous child with a non-Indigenous carer and to veto the making of an order for permanent placement. 

In South Australia the impact of the inclusion of Indigenous agencies is limited by the minimal requirement that decision makers need only ‘have regard’ to their opinions. Further, the Minister makes the final decision on which Indigenous organisations are to be gazetted.

In most jurisdictions the identity of ‘relevant’ agencies and the timing and quality of consultations are not specified. The result is that discussions typically occur too late in the decision making process and in too cursory a manner to permit an effective contribution to be made. Indigenous agencies could contribute to working with the family to prevent the child being removed, working with the family to prepare it to receive the child back, locating, training and supporting an appropriate Indigenous foster carer. All of these tasks require at least that the agency is notified as early in the intervention process as possible. AICCAs are further constrained in the effectiveness of their contribution to retaining Indigenous children within their families and communities by limited funding (recognised in ATSIC submission 684 page 106). 
Inadequate funding of AICCAs
Funding of AICCAs and MACS remains inadequate. Funding is often from three different sources, State or Territory Governments, the Federal Department of Community Services and Health and ATSIC. While the role of Indigenous organisations is recognised as crucial, funding is often insecure.

Services to Aboriginal children youth and families are fragmented, deficient in scope and of very limited quantity. Aboriginal families who are attempting to access services find that they may have to travel a large distance to access a particular service (SA ACCA submission 347 page 27).

Each jurisdiction has a process for consulting with Indigenous organisations about funding but Indigenous organisations are not included at all, let alone as partners, in the decision making. For example in Queensland the funding process enables contributions from Indigenous stakeholders. They are afforded the opportunity to offer an opinion but are not included in the group which makes the decision. They do not decide how money allocated to Indigenous groups will be spent or to whom it will be given (Queensland Government interim submission page 20). 

Numerous submissions to the Inquiry from Indigenous and non-Indigenous organisations pointed out that reversing the disproportionate levels of Indigenous children in out-of-home care will require the provision of resources to enable Indigenous communities and organisations to address child neglect and abuse issues in a manner which they consider is relevant to the local context.

We contend that we have the right to choose our own destiny including control over our children. However we consider that the recent political shift towards non intervention does require a strong word of caution. With the current need to limit public spending, there is a tendency for Governments to ‘leave’ Aboriginal families and communities to look after their children. We believe it would be a very cruel reform indeed for authorities to cease intervening into the lives of children who really are in need, without providing the urgently needed resources that are necessary to give Aboriginal children the care and attention they require. Government help is required, in an enabling role, providing finance, technical, social, and economic skills so that Aboriginal people can get on with the job (working party representing the welfare department, Manguri, Centacare Cottages and Yorganop, quoted by WA Government submission, Attachment 4 on page 6).

‘Partnerships’ between Indigenous children’s agencies and government departments, where they exist, are unequal partnerships. Departments retain full executive decision making power and the power to allocate resources affecting Indigenous children’s welfare. Judicial decision making occurs within non-Indigenous courts. In no jurisdiction are Indigenous child care agencies permitted to be involved in the investigation of an allegation of neglect or abuse. The difference between being allowed to participate and having the right to make decisions is evident in Indigenous communities’ experiences of child welfare systems. 
Inappropriate evaluation of prospective foster carers
The high percentage of Indigenous children who are placed in substitute care, in combination with ethnocentric foster carer assessment and high levels of poverty in Indigenous communities, has resulted in a great shortage of Indigenous foster carers. The research and data available clearly indicate that numbers of Indigenous children are still being placed with non-Indigenous foster carers.

Submissions to the Inquiry made recommendations to address this problem including increased training and support for Indigenous foster carers, alternative models of out-of-home care such as small cottage homes, more accessible and flexible financial support arrangements for foster carers and the recruitment of foster carers by Indigenous organisations (see for example South Australian Aboriginal Child Care Agency submission 347 pages 31-32, WA Government submission, Attachment 4). It is noteworthy that in the ACT, where no Aboriginal foster care agencies exist, welfare agencies have been unable to attract any Indigenous foster carers.

The assessment of prospective foster carers is commonly the responsibility of government welfare officers.

Past difficulties in placement practices involving Aboriginal children have arisen due to, in part, the imposition of white middle class standards and limited cultural sensitivity. Until now the selection criteria and the bureaucratic assessment processes have reflected the values of the dominant society which are alien to Aboriginal values and lifestyle (WA Government submission, Attachment 4 page 10). 

The process itself operates as a powerful disincentive to Indigenous families to volunteer to be officially recognised, and subsidised, as foster carers.

… We first started fostering with a church-based organisation. We had to do a ‘fostering course’ and they checked out our house and the rest of the family as well as a police check. That was a bit scary because you don’t know what they are looking for.

They asked about our financial position. We felt that was a bit unnecessary because Aboriginal people always have room for one more child. If we decided to be foster parents then we’ll share whatever we have. We’ve never had a lot – but you can always spread another weetbix around!

They sent a social worker who seemed to assess our mental state. They can’t give kids to just anyone – they are just too precious, so we understood this. But it was unnerving, and we think this would probably turn potential foster parents away (quoted by Link-Up (NSW) submission 186 on page 179).

Delegation of assessments to Indigenous agencies is necessary to promote the acceptance of Indigenous carers for Indigenous children who must be removed from their families.

Failure of the welfare approach
Although significant, the ACPP operates within a broader context of government welfare activities which have not been able to accommodate Indigenous perspectives and needs.

Definitions of welfare, well-being, need and neglect
… this year, in 1996, I was told by one district officer that an Aboriginal family was ‘socially impoverished’. What the hell does that mean? No talk about how kind they are to grandkids. It’s white values being placed on Aboriginal families once again, without even thinking about it. It’s no wonder the gap between Aboriginal and non-Aboriginal continues to widen. You would think that we would have progressed more than this, but in our experience that’s not the case (quoted by Link-Up (NSW) submission 186 on page 179).

The FACS [SA] came to check my grand-kids. If they have muscles they are deemed O.K. The FACS check on the kids’ skins, muscles, if they tremble. They said they were O.K. and they left us.
  
We don’t like Welfare. We don’t want to give our kids to Welfare. I only see FACS come, but they don’t help Anangu.
  
We want the FACS visitor to advise women’s Council of when and why they are coming in, so that the whole of AP [the Anangu Pitjantjatjara peoples] can consider the future of kids in question. The entire extended family (Harrison 1991 pages 25-29).
  
In Aboriginal communities responsibility for children generally resides with an extended kinship network and the community as a whole. Children are important for the future of the culture and their community has a right to their contribution. Raising children in Aboriginal communities commonly involves children living with kin and the extended family taking responsibility for them.

Children are the responsibility of the entire family rather than the biological parents alone. Many Aboriginal people have been ‘grown up’ by members of the family other than their biological mother and father and this practice of growing up children is still very widespread today … As a result of the children being encouraged to think and have responsibility at a very early age, they have a large degree of autonomy (Daylight and Johnstone 1986 page 27).
  
The involvement of extended kin networks, close supervision of very young children, a high level of autonomy among older children and an emphasis on providing comfort and affection rather than discipline are features of Aboriginal child-rearing that are widely recognised in communities in different geographic locations and living different lifestyles. Yolgnu children in the Northern Territory from the age of three begin to transfer their physical and emotional dependence from their mother to their camp group and that between the ages of five and fifteen years they have a great deal of independence (Healy et al 1985). Among the Maran people of the Western Desert ‘children are free to do very much as they like most of the time and are given very few explicit instructions by adults’ (Tonkinson quoted by Thorpe 1994 on page 161; see also Hamilton 1981, Sansom and Baines 1987).

There is, therefore, a conflict of values. In Western societies a child’s absence from the nuclear family over a period of time or regularly is considered abnormal and indicative of a problem within the family. An assessment of Aboriginal children’s welfare files created in Victoria in 1980 and 1990 found that while there was a greater willingness to use extended family foster carers in 1990 there was still a lack of understanding and lack of acceptance of extended Aboriginal family relations (Thomas 1994). ‘[T]he functioning of the extended family within an Aboriginal cultural context is seen as pathological or dysfunctional’ (page 43). One 1990 file note recorded,

Concerns were expressed around the number of people who may attend the home while the children are present [for Christmas]. Mrs A agreed to request that all extended family members other than her mother, will be asked to leave while the children are there (quoted by Thomas 1994 on page 43).

Thomas concluded from her review of the 1990 files,

Extended family contact is construed as the source of potential conflict and abuse, and as such must be tightly controlled by the Department. In contrast with Aboriginal demands which label state practices isolating children from their families as abusive, Departmental concerns lie with the extended family itself (Thomas 1994 page 42).

‘Normal’ Aboriginal practice signals a problem to many welfare workers. The files created in 1990 continued to demonstrate welfare workers’ perception of Aboriginality as a cause of delinquency and problems. Behaviour in both periods was frequently stereotyped in a racist way. 

Potential foster mother can already sense that she may already have Aboriginal tendencies, as she can be happily playing in the school ground with the other children and all of a sudden cut off and ‘go walkabout’. 

I think failure as human beings may be an issue which will come up as that is a common experience with Aboriginal people (Thomas 1994 page 38).

Attitudes in 1990 were contradictory. In some files the child’s Aboriginality and relationship with the community are seen as central and in others they are ignored. While recognition of the child’s Aboriginality had improved by 1990, there was a continuing failure to contextualise the child’s needs. There was also a failure to address racism in the education system, housing problems, lack of family relations where placement with a non-Indigenous family had broken down and more generally poverty and structural factors resulting in interventions.

A study of 335 children’s case files in WA found that the exercise of  discretion by welfare officers affects Indigenous children in an adverse manner (Thorpe 1994 page 170). Definitions of neglect are more subjective and culturally particular than definitions of abuse. This may contribute to the large number of Indigenous children found to be neglected. There has been no specific research into whether cultural bias contributes to the high percentage of substantiated neglect cases. However, cultural bias within welfare departments suggests that this is likely. A further factor is the high level of poverty in Indigenous communities.

Systemic inequalities
Submissions to the Inquiry reflected communities’ grave concerns about social breakdown and its consequences, including alcohol, petrol and other substance abuse, domestic violence, poor nutrition, child abuse and other consequent problems. The primary reason for welfare intervention in Indigenous communities is neglect. Social inequality is the most direct cause of neglect. Adequate family assistance could make major inroads.

Welfare departments in all jurisdictions continue to fail Indigenous children. Although they recognise the Aboriginal Child Placement Principle, they fail to consult adequately, if at all, with Indigenous families and communities and their organisations. Welfare departments frequently fail to acknowledge anything of value which Indigenous families could offer children and fail to address children’s well-being on Indigenous terms.

Aboriginal families continue to be seen as the ‘problem’, and Aboriginal children continue to be seen as potentially ‘savable’ if they can be separated from the ‘dysfunctional’ or ‘culturally deprived’ environments of their families and communities. Non-Aboriginals continue to feel that Aboriginal adults are ‘hopeless’ and cannot be changed, but Aboriginal children ‘have a chance’ (Link-Up (NSW) submission 186 page 85).

The needs of Indigenous families and communities are neglected while Indigenous children continue to be disproportionately involved with ‘The Welfare’ and juvenile justice. Evidence to the Inquiry repeatedly indicated a community perception that the problems which result in removals need to be addressed in terms of community development. However, welfare departments continue to pathologise and individualise protection needs of Indigenous children. At the same time, recognition of past failures, under-resourcing and, in some instances, racist attitudes frequently result in a failure to intervene until the family crisis is of such proportions that separation is the most likely or even only possible course.

Indigenous communities throughout Australia gave evidence to the Inquiry of their need for programs and assistance to ensure the well-being of their children. Not a single submission to the Inquiry from Indigenous organisations saw intervention from welfare departments as an effective way of dealing with Indigenous child protection needs. Departments recognise that they need to provide culturally appropriate services but they fail to develop them. 

Despite changes of names from Department of Community Welfare to the Department of Community Development to the Department of Family and Children’s Services (FCS) [WA] many Aboriginal people feel that the Department has remained a welfare institution reminiscent of Native Welfare. FCS still wields statutory control over families struggling to survive. Decisions which affect the lives of children are frequently made by staff without discussion with Aboriginal families. Many people facing crises with their families will often not seek assistance from the department because of their association with ‘Welfare’ who took the children away (Kimberley Land Council submission 345 page 28).

It is not surprising, given the experiences of present and earlier welfare policy and practices, that Aboriginal perceptions of the current role of DCS [NSW] remain overwhelmingly negative. Despite the employment of Aboriginal field workers most interviewees expressed suspicion of and antipathy towards, DCS. Despite changes to policy and legislation, DCS practice remains, in the opinion of those interviewed, culturally inappropriate (Learning From the Past 1994 page 58)

Families are concerned that any contact with FACS [SA] may result in their children being removed. Hence for programs involving the well-being of Aboriginal children to be successful, they need to be managed by and operated from Aboriginal organisations (SA ACCA submission 347 page 37). 

Evidence to the Inquiry confirms that Indigenous families perceive any contact with welfare departments as threatening the removal of their child. Families are reluctant to approach welfare departments when they need assistance. Where Indigenous services are available they are much more likely to be used.

Failure to address serious problems within communities has been identified as being ‘fuelled’ by systemic problems with the provision of child welfare services to Aboriginal communities (Atkinson and Memaduma 1996). Cultural distortion together with incapacity to cope with the extent of the problems has led to Aboriginal children remaining in abusive situations which non-Aboriginal children would not be left in. Further it has prevented a constructive approach being taken to addressing ‘crisis’ situations. 
… too frequently in the area of child abuse, and similarly in the area of domestic violence there is a covert ideology that because these concerns are so significant among Aboriginal communities, their existence is presumed to be culturally sanctioned. This form of cultural reductionism, acts as a form of cultural apology, perpetuating and exacerbating the crises of child abuse in Aboriginal communities. Such a view has several critical attitudinal consequences amongst workers in their service understanding and intervention response.

The cultural apologist position enables planners and workers to adopt a position of inevitable resignation over the problem of child abuse in Aboriginal communities, ‘what else can you expect, that’s the way Aboriginal people go on – you cannot expect any better’. Such an approach is clearly, an extreme form of cultural determinism, where child abuse is seen as a function of Aboriginal culture and not a consequence of the structural context of Aboriginal life in this country (pages 13-14).

Welfare officers may feel uncertain about when it is appropriate to intervene in an Indigenous family in crisis. The Sydney Aboriginal Mental Health Unit complained of intervention occurring too late.

There is a failure to involve appropriate Aboriginal professionals at an early notification stage, involvement is always later …
  
The recognition of the shameful legacy of the forced removal of children by government departments has led to a paradox of inaction. Community Services when notified of abuse or neglect frequently do  nothing, hence compounding a situation of abuse and neglect. 
  
As a result of critical inaction, a child will sometimes suffer for an unnecessarily prolonged period and when action is taken, removal ensues because of the established chronicity. Involvement of appropriate Aboriginal professionals is often not instigated at the early notification phase, when a situation could have been most easily remedied.

Hence the initial official neglect compounds the cycle of continued removal of children (submission 60 pages 4-5).
  
Ineffective responses to structural problems and individual circumstances lead not only to separations through late intervention but to loss of children through suicide, cultural breakdown and social disintegration. This loss is a serious concern to many communities.

A number of submissions to the Inquiry suggested that for many Indigenous children separation from land and kin was an extreme form of abuse and that the threat of children being removed was so frightening that the threat was abusive itself. 
In relation to understanding the concept of abuse in Anangu terms, the women were emphatic that the most destructive and harmful form of abuse which could be inflicted on any child was removal from their country and loss of their cultural heritage. This was identified as a form of emotional and mental abuse which could result in physical illness for the child (Harrison 1992 page 11). 
  
The WA Working Party on Guidelines for the Assessment of Aboriginal Caregivers similarly recognised,

Not telling children who their relations and country are is regarded by Aboriginal people as one of the most destructive and harmful forms of abuse (WA Government submission, Attachment 4 page 10). 

Bureaucratic procedures
Indigenous people often see welfare departments as unable to assist them and their communities. They perceive the departments as bureaucracies which require a lot of paperwork, judge Indigenous people’s lives and ultimately remove their children. The Inquiry was told repeatedly of the difficulty Indigenous carers encounter in obtaining the financial and other support they need to care for children. Kin care is often placed under stress because of a shortage of food and other necessities. Sometimes assistance which is provided does not go to the person caring for the child. Frequently women found the Department of Social Security inaccessible. They could not handle the paperwork required to obtain assistance. At a community level Aboriginal organisations are often not linked into grant and funding programs and hence miss out on the opportunity to access funds from the range of available sources. 

Older Pitjantjatjara women on the AP lands describe their experience of Family and Community Services as one where the department exercises blanket powers, fails to recognise AP protocols and fails to inform families when the department is visiting, why or what is likely to happen. This perception contrasts with the view of the Chief Executive Officer of SA Family and Community Services.

… the challenge for us is to balance the legislative obligations we have and implementing these obligations in a way that gives Aboriginal agencies and people scope to ensure that we are meeting needs in terms that are appropriate for them, and in a way that enables Aboriginal families to make decisions about the future of their own young people, and in a way that enables Aboriginal agencies to play a significant part … it’s entirely consistent with our current legislation that [in] decisions we make that involve Aboriginal families and children, we should be actively seen to have taken the advice of appropriate Aboriginal leaders and agencies (Mr Richard Deyell evidence).

The experience of Indigenous agencies contradicts government rhetoric of enhanced consultation and cultural sensitivity.
… the reality is that child welfare officers who had three months training in some diploma course at TAFE are the ones who are exercising the rights over the ultimate destination of Aboriginal children. They have no understanding of the Aboriginal community. They have no knowledge of the culture of Aborigines. They have no understanding whatsoever in those courses about the disadvantages that Aboriginal people suffer and yet … they are the people who are exercising the delegated authority of the Director in determining what will happen to those kids  (Michael Mansell, Tasmanian Aboriginal Centre, evidence 325).

Children with disabilities
Indigenous children with disabilities are over-represented in all welfare statistics, particularly in non-Indigenous substitute care. In May 1995 Aboriginal children represented 79% of all children with disabilities in care in the NT. Just over one-half (53%) of children in care were Aboriginal and almost half of these children had disabilities. Only 37% of Aboriginal children with disabilities were placed with Aboriginal carers (NT Government interim submission pages 54 and 56). 

In August 1995 the first general meeting of people with disabilities, their carers and families took place on AP lands (South Australia). Anangu at the meeting said that disabled people on the lands are ‘ngaltujara mulapa’ – ‘truly unfortunate’ and the most disadvantaged. 

Many people spoke about the needs of these children to learn their own culture and language, including ‘mara wangkani,’ Anangu hand signs, instead of Australasian sign or Makston. Anangu also talked about welfare policies sounding good, but not resulting in any action on a community or family level … There was much discussion about Anangu starting their own welfare service based on the lands (Uwankaraku Meeting Report 1995 page 9).
  
The meeting set guidelines including,

• 	Compulsory cross-cultural training for non-Aboriginal foster families.
• 	Make plans for children with disabilities so everyone knows the story with families on top, not foster families and Welfare.
• 	More funds needed to make this work.
• 	Disability ngura (supported accommodation) for children with disabilities on the lands.
• 	Communities and Aboriginal organisations to take over more of the welfare role.
• 	Welfare needs to help families to visit their children by paying for the trips (Uwankaraku Meeting Report 1995 page 10). 
These guidelines reflect the needs of many Indigenous communities, particularly remote communities or communities where disability facilities are not available. The NSW Council for Intellectual Disability pointed out in a submission to the Inquiry the incoherent and confused law, policy and practice affecting children with disabilities which have particularly negative effects on Indigenous children.

Aboriginal children and young people with intellectual disability are in a position of double jeopardy, being devalued not only on the basis of their disability, but also their Aboriginality. Where Aboriginal children and young people with disabilities originate from rural and remote communities they are multiply disadvantaged (submission 848 page 3). 
 
The Council noted the low participation rate of Aboriginal people in disability services and suggested this may lead to inappropriate welfare intervention being the only support available (page 5). The Council also noted that Indigenous children easily disappear into long-term non-Indigenous residential care without being detected. Other matters raised included the failure of services under the Disability Services Act 1993 (NSW) to cater for Aboriginal children. The Act has established service principles which include the requirement to meet the needs of persons with disabilities who experience additional disadvantage including Aboriginal people to ‘recognise the importance of preserving family relationships and the cultural and linguistic environments of persons with disabilities’ and to establish transition plans where these needs are not met. However, the Council has reviewed several hundred of the 850 transition plans developed for specialist disability services and not a single plan addresses reunion of Aboriginal children with their families or takes steps to establish plans for substitute care arrangements for Aboriginal children with their family or community (submission 848 page 10).

In practice the Aboriginal Child Placement Principle appears to have only limited application for Indigenous children with disabilities. This situation urgently needs to be acknowledged and addressed.

Conclusions
Welfare legislation and the language of welfare policy have changed. However, submissions to the Inquiry from Indigenous organisations working with Indigenous families indicate little change in practice. Paternalistic attitudes persist in welfare departments. Indigenous children continue to be severely over-represented within all State and Territory welfare systems. Departmental attempts to provide culturally appropriate welfare services to Indigenous communities have not overcome the weight of Indigenous peoples’ historical experience of ‘The Welfare’ or the attitudes and structures entrenched in welfare departments.

Submissions to the Inquiry urged that culturally-appropriate welfare-related services are most effectively provided by Indigenous organisations.
The Department of Community Services [NSW] should be reformed, or they should not have the responsibility of dealing with Aboriginal families. If DOCS is to be reformed then there needs to be drastic changes which ensure that the Aboriginal community is adequately consulted when any decision is made about the placement of an Aboriginal child. For example, a community panel could be created which sits as a consultative body when placement decisions are made. Alternatively a new organisation could be created which serves to empower the Aboriginal communities by providing the Aboriginal community with a real role to play in the management of child welfare within their own community (Western Aboriginal Legal Service (Broken Hill) submission 775 page 27).

Real control over the delivery of our citizenship rights needs to be handed over to Aboriginal organisations and legitimate representative groups … Until this occurs then organisations such as Tangentyere Council will continue to struggle on shoe string budgets to deliver services to, and act as advocates on behalf of Aboriginal families whose lives are still impacted on by futile mainstream services, that use terms such as ‘culturally appropriate’ and have absolutely no idea what this means (Tangentyere Council submission 542 page 2). 

All State and Territory governments have recognised the importance of Aboriginal self-determination or self-management in the provision of welfare services to Indigenous peoples. If the gap between intentions and experience is to be narrowed or closed these meanings and implications must be addressed.

For many Indigenous communities the welfare of children is inextricably tied to the well-being of the community and its control of its destiny. Their experience of ‘The Welfare’ has been overwhelmingly one of cultural domination and inappropriate and ineffective servicing, despite attempts by departments to provide accessible services. Past and current legislative and administrative policies together with bureaucratic structures and mainstream cultural presumptions create a matrix of ‘Welfare’ which cannot be reformed by means of departmental policy alone. If welfare services are to address Indigenous children’s needs they need to be completely overhauled. Welfare services must be provided in a manner which is accepted by communities.

While broad schemes are administratively convenient, communities vary significantly in their aspirations, capacities and awareness of options. Child welfare models should be sufficiently flexible to accommodate these variations. Ultimately, child welfare appropriate to each community and region should be negotiated with those whose children, families and communities are the subjects of the system. Negotiation clearly implies empowerment of Indigenous parties and recognition of their true partnership in the reform process.

Endnotes
1	WELSTAT data are marred by inconsistency and variable quality between jurisdictions and overall are incomplete. All State and Territory welfare departments keep records of children in out-of-home care, whether placed by government or by private agencies. Varying definitions are used for the collection and collation of data. All agencies break down the figures into a range of categories including whether the child is Indigenous. The accuracy of this breakdown is not clear although it is known that a number of children who are Indigenous are not recorded as such. It is particularly difficult to make comparisons between States and Territories on the rate of children under departmental attention, and particularly in out-of-home care, because departments use different definitions and categories in the collection of data.

	Nonetheless the data available clearly indicate serious over-representation of Indigenous children in all stages of contact with welfare systems. The level of over-representation increases as the level of intervention increases. Indigenous children are over-represented in all categories. Their over-representation is markedly higher among children removed for neglect compared with abuse. Torres Strait Islander children in Queensland – where the largest Torres Strait Islander population lives – appear to have higher rates of notification and substantiated findings of abuse compared with Aboriginal families.

Lance
Dad died when I was about two. My parents were married, but they often lived apart. When I was a little kid, they gave me to an Uncle and Auntie and the police took me away from them and put me in a Home. I have never been with my brothers and sisters at all. They were also put into the same Home. My brothers and sisters did not know that I existed until a nun said, ‘Come and meet your little brother’. I have some contact with them now. I see them once every six months. To me they are like acquaintances. 
If I was in a stable Aboriginal family, I wouldn’t have the problems I have now – identifying myself as Koori. For ages I despised my parents; how could they just dump me in this Home? I hated them for what they were – Koories. I therefore hated Koories. I hated myself because I was Koori.
St Joseph’s Home – Sebastopol – is where I grew up. It was run by nuns wearing black habits. The only Aboriginal kids there were just me and another bloke. There were girls there too. I stayed there for seven or eight years. I bloody hated it. I remember going to bed crying every night and wetting the bed every night and every day moping around unhappy. I hated authorities. The nuns were really strict on you. We had a big dormitory where the boys slept. I used to go to bed crying. I remember a nun with a torch saying, ‘Stop crying’. I hid my head. She came back and hit me on the head with the torch. I still have the scar today.
I did not know I had brothers and sisters …
I did not know I had brothers and sisters until I was aged twelve. I thought, ‘How come I did not know about it? Where were they? How come they did not come and play with me?’. You did not really want to know them and find out Mum and Dad kept them and threw you away. You’d realise your fears were true.
Lake Condah Mission is where my parents came from. I suspect they grew up with their parents. My parents moved around heaps, although my mother doesn’t now. We have a love/hate relationship. She loves me, but I hate her. I have never had a Birthday Card or Christmas Card. She is just a Mum in that she gave birth to me. 
At age eight I was adopted out to these white people. They had three children who were a lot older – in their thirties and forties. I get on with them well. They send me Christmas Cards and Birthday Cards. It is good having people like that, but sometimes you know you are not really part of the family. You feel you should not really be there, eg, 
‘Come along Lance we’re having a family photo taken’. I have not told them how I feel. They have tried real hard to make me feel part of the family, but it just won’t work.
I got up to Year 11 at School. I got a lot of flak, ‘How come your parents are white?’. On Father and Son Day, ‘Is he the Postman or what?’. It was pretty awkward. It was always awkward. I was always a shy kid, especially among my Father’s friends. ‘Here is my son’. They would look at you. That look. ‘You’re still together?’. I remember waiting for my Mother at her work, which was a bakery. A bloke asked me, ‘Where is your Mum’? He searched for an Aboriginal lady. I wished God would make me white and these people’s son instead of an adopted son.
I still call them Mum and Dad. But when I go to my real Mum, I find it real hard to call her my ‘Mum’ because she has just been another lady – OK a special lady. Mum’s Mum [ie adoptive mother] because she was there when I took my first push bike ride and went on my first date.
After Year 11, I got a couple of jobs. I got into heaps of trouble with the Police – drugs and alcohol. I could get my hands on it and escape and release my frustration. I saw Police … their fault as well as with me being taken away from my family. Slowly that decreased because a couple of cops came to my place, just to see how I was doing and just to talk to me. You can see the effects of stuff, such as alcohol, so I don’t drink anyway. Alcohol took me away from my parents, who are chronic alcoholics. Mum is and Dad was. It took my brother [car accident at 18 years, high blood alcohol reading].
Three years ago I started taking interest in Koori stuff. I decided at least to learn the culture. I did not find the stereotype. I found that we understood what we were and that we were on a wave-length. I made a lot of friends and I am yet to make more. It becomes very frustrating. I am asked about a Koori word and I don’t know. You feel you should know and are ashamed for yourself. I feel Koori, but not a real Koori in the ways of my people.
It is hard to say whether I was better off being taken away because the alternative never happened. I think the people I went with were better off economically and my education was probably better than what it would have been otherwise. I might have ended up in jail. I may not have had two meals or none and fewer nice clothes and been less well behaved. 
If someone tried to remove my kids – over my dead body. I’d pack them up and move them away. Not the shit I’ve been through – no.
Confidential submission 154, Victoria: removed 1974.

22		Adoption
There can be little argument that the ‘welfare principle’ should apply in cases of custody of Aboriginal children. The problem, however, is who decides what is in the best interests of an Aboriginal child and what standards are used in reaching this decision (Australian Law Reform Commission 1982 page 17).

Overview
Adoption is the transfer, generally by order of a court, of all parental rights and obligations from the natural parent(s) to the adoptive parent(s). In Australia, legal adoption is relatively recent. It was first introduced in 1928 in Victoria, for example. Until very recently adoption involved near-total secrecy, partly in deference to the desire of adoptive parents to present the child as their own and partly because of the stigma of illegitimacy which typically attached to adopted children. The birth parents were not entitled to information about the adoptive parents, including the child’s new family name, and there were safeguards to ensure that the birth parents would never interfere in the child’s upbringing. The child was not entitled to information about the birth parents.

Non-relative adoption is a much rarer phenomenon today than it was even 25 years ago. Total adoptions in Australia halved from 6,773 in 1969 to 3,337 in 1980 (Healey 1993 page 30). By 1994-95 the figure had fallen to 535, 42% (224 children) of whom were adopted from overseas (Angus and Golley 1995 page 1). In Victoria in 1971-72, 1,488 children were placed for adoption. Ten years later the number was 287 (Lancaster 1983 page 27). In NSW in 1971-72 the welfare department arranged 3,882 adoptions. By 1991 the number had dropped to 154 (Healey 1993 page 30).

The reasons are clear and relate primarily to the significant reduction in the stigma and legal liabilities of illegitimacy, increased availability of contraception and abortion to control fertility and the availability of social security support for sole supporting parents. There has been a corresponding decline in the placement of Indigenous children for adoption. Moreover, because of the intensive work of Aboriginal and Islander child care agencies and the recognition of the Aboriginal Child Placement Principle, the majority of Indigenous children who are placed for adoption are placed with other Indigenous families.

As the following discussion indicates, however, the best results for Indigenous children – namely, security within their own families and communities or with significant continuing contact – are achieved in those jurisdictions where the ACCP is given legislative status and Indigenous child care agencies are most closely involved in placement decisions.

Adoption and Aboriginal values
Aboriginal people’s attitude to adoption differs significantly from that of Torres Strait Islanders. Aboriginal traditional values and Law oppose adoption. It is ‘alien to Aboriginal philosophies’ (Randall 1982 page 346) and ‘incompatible with the basic tenets of Aboriginal society’ (NSW Law Reform Commission 1994 page 192).

Adoption is alien to our way of life. It is a legal status which has the effect of artificially and suddenly severing all that is part of a child with itself. To us this is something that cannot happen even though it has been done (Butler 1989 page 28).

This fact was recognised by the 1991 report of the Western Australian Adoption Legislative Review Committee.

It is commonly recognised by the community that the adoption of Aboriginal children is alien to traditional Aboriginal child-rearing practices. It is also acknowledged that in the past, numbers of Aboriginal children were removed from their families and adopted into white families. The Committee endorses the growing community belief … that this practice should not continue.

The Committee has therefore recommended that in the few instances when adoption is appropriate for an Aboriginal child, it should only be by persons from the child’s community who have the correct kinship relationship or when this is not possible, by other appropriate Aboriginal person(s) (page 14).

The draft policy statement of the NSW Department of Community Services on the placement of Aboriginal children for adoption (dated 1987) makes a similar acknowledgement.

Such a radical severance of parental ties is however alien to Aboriginal culture and it is acknowledged that in the past inappropriate use of adoption has caused great suffering for Aboriginal children and their parents.

Adoption and Torres Strait Islander values
Customary adoption is reported to occur in the islands of the Torres Strait, as elsewhere in the Pacific, and among Torres Strait Islander communities on the Australian mainland. It involves the permanent transfer of care responsibilities and is a ‘social arrangement’ which serves to entrench reciprocal obligations thereby contributing to social stability. Traditionally the chosen adoptive family was in the same ‘bloodline’ as the birth family. However, with ‘inter-racial’ marriage now more frequent, adoptive parent(s) may be related only by marriage. There is also a growing practice of giving a child to family friends rather than relatives. As in general Australian law, customary Torres Strait Islander adoption makes the child fully a member of the adoptive family (Ban 1993 page 4).

In the eyes of Australian law, customary adoptions are private adoptions. They are not prohibited but they are not legally recognised either. Difficulties arise in a number of contexts.
•	The relinquishing family may seek the return of the child, for example when there may have been a misunderstanding as to the permanence or otherwise of the transfer of care (Ban 1993 page 5).
•	The child’s birth certificate will not be amended. The certificate identifies the birth parents rather than the adoptive parents as the parents of the child. When the child obtains a copy, he or she may find out for the first time that his/her ‘real’ name is not the name being used (Ban 1994 page 8).
•	The child’s inheritance rights could become complex and confused, even denied. When a parent dies intestate ‘[d]isputes have arisen between adopted siblings and natural siblings over their parent’s estate’ because the Public Trustee has not recognised the adoption (Ban 1994 page 8).

From the perspective of increasingly progressive adoption practice, there are several concerns which would need to be addressed before a recommendation could be made for legal recognition of customary adoption.
•	A formal assessment of the suitability of the adoptive family has not been made (except, of course, by the relinquishing parents).
•	The basis of customary adoption is reciprocity rather than the best interests of the child.
•	The child might be improperly viewed as a chattel.
•	The child’s family connections are, by custom, kept from him or her.

Islanders have also identified problems with the contemporary practice of adopting a child outside the extended family. Custody disputes may be more prevalent and there are risks of adoptive children marrying kin in ignorance of their natural relationship.

Laws, practices and policies
Adoption is effected by a court order in all Australian jurisdictions except Queensland where the adoption order is made by the head of the welfare department. The welfare department or authorised non-government adoption agency, having secured the informed consent of the birth parent(s) and located and approved a ‘suitable’ adoptive family, assists the adoptive family to apply for an adoption order. Even where parental consent has been obtained, the court must consider relevant matters before making the order. It is not a foregone conclusion. Where the birth parent(s) have not consented the court may, in defined circumstances, dispense with her (or their) consent. The practices of both adoption agencies and courts are relevant, therefore.

Although all Australian social welfare ministers and administrations endorse the Aboriginal Child Placement Principle in the adoption context, the statements and implementation of the Principle vary significantly. There are three basic approaches.
1.	Incorporation of the ACPP only in policy directives.
2.	Incorporation of the ACPP in legislation.
3.	Incorporation of both the ACPP and the role of Aboriginal child care agencies in legislation.

Recognition in policy only
The ACPP is incorporated at the level of policy only in New South Wales, Tasmania, Western Australia and Queensland. Policy directs officers of the department recommending a placement. It does not necessarily direct the work of non-government adoption agencies. Unlike legislation it cannot direct the court ultimately making the adoption order. Moreover, the NSW policy has been in draft form since 1987 and has never been formally adopted.

The NSW draft policy does not set out the ACPP. It merely directs that Aboriginal children surrendered for adoption be placed with Aboriginal families. In Tasmania the policy restates the ACPP in the form adopted by the 1986 Social Welfare Ministers’ Conference. It further directs departmental officers that the Aboriginal Family Support and Care Program is to be involved in the assessment and planning for all Indigenous children.

In WA the policy which is relied on to address adoption applies clearly only to the situation where the child is in need of care and protection and substitute care is being considered. It sets out the ACPP and requires that an Aboriginal child only be placed in a non-Aboriginal family or institution with the approval of the Director General. Such a placement ‘should contribute to the best possible retention of the child’s relationship with his parents and community, including regular contact’. The policy directs departmental officers to consult the Aboriginal child care agency (Yorganop) about placement issues in the metropolitan area.

Queensland legislation does not reflect the ACPP.  The Adoption of Children Act 1984 (Qld) simply directs the Director, who makes the adoption order, to place a child from any ethnic background with an adopter from a similar background, unless such an adopter is unavailable or the welfare and best interests of the child, in the Director’s opinion, would not be best served by adoption in a family of the same background (section 18A). 
The Act does not require preference to be given to the child’s extended family, with further options in order being another person in the correct relationship to the child, another member of the child’s Indigenous community and, finally, another Indigenous family as the ACPP requires. Regulations made in 1988 direct attention to the ability of the prospective adoptive parents to ‘develop or maintain the child’s indigenous ethnic or cultural identity’ as one criterion for assessing the suitability of particular adoptive parents (Schedule 6).

Queensland departmental policy spells out the ACPP preferences in a way very similar to that of WA. Unlike the WA policy, however, it specifically refers to adoption as raising issues distinct from child protection. Thus, in the case of a proposed relinquishment for adoption, the parent(s) is to be counselled by an Indigenous worker and counselling is to ‘explore alternatives to adoption, including family support, custody and guardianship options’. There is no provision for the involvement of Indigenous agencies.

The survey of Queensland welfare authorities commissioned by the Royal Commission into Aboriginal Deaths in Custody found that the Aboriginal Child Placement Principle had not been fully or comprehensively implemented across Queensland due largely to the lack of proper monitoring. There was concern that some departmental officers were unaware of the policy (O’Connor 1990).

Statutory recognition of ACPP
The remaining States and the Territories spell out the Aboriginal Child Placement Principle in their adoption legislation. South Australia, the Northern Territory and the ACT express a preference for placement other than adoption for Indigenous children.

In SA the court must be satisfied that adoption is preferable to guardianship in the best interests of the child before making an adoption order. This provision makes adoption an order of last resort. Once it has been decided that adoption should proceed, the order must be made in favour of a member of the child’s Aboriginal community who has the correct relationship with the child. Only if there is no such person willing and approved to adopt the child can an order be made for adoption by some other Aboriginal person. If the court intends to authorise the adoption of an Aboriginal child by a non-Aboriginal person, it must be satisfied that there are special circumstances and that the child’s cultural identity will not be lost as a result (Adoption Act 1988 section 11). The relinquishing parent can ensure that a relative adopts the child by limiting consent to adoption only by a relative (section 15(4)). Even where consent is general, however, the ACPP in section 11 will apply.

The ACT legislation prevents an adoption order being made at all in the case of an Aboriginal child unless the court is satisfied that it is not practicable for the child to remain in his or her parent’s custody or in the custody of a ‘responsible person’ who is a member of the child’s Indigenous community. The court also has to consider whether the choice of adoptive parents has taken into account both the desirability of the child being in the custody of an Indigenous community member and the desirability of the child being able to keep in contact with his or her birth parents and extended family and his or her entire Indigenous community (Adoption Act 1993 section 21).

The NT provision is very similar while additionally making explicit reference to Aboriginal customary law (Adoption of Children Act 1994 section 11). The court has a discretion to determine that custody within the extended family or with people who have the correct relationship with the child is not consistent with the welfare and interests of the child. The Act sets out the considerations relevant to the exercise of this discretion (Schedule 1). They include the principles that it is preferable for children to be placed in families having the same ethnic and cultural origins as the birth parent and, with respect to Aboriginal children, ‘the desire and effort of the Aboriginal community to preserve the integrity of its culture and kinship relationships’.

Statutory recognition of ACPP and role of AICCAs
Victoria goes further than the other States in providing more comprehensively for the involvement of Aboriginal organisations in the decision-making on adoption placements for Indigenous children. Indeed, Victoria incorporates further features which the Inquiry recommends should be adopted universally.

The Victorian Adoption Act 1984 has been promoted by the Secretariat of National Aboriginal and Islander Child Care (SNAICC) as a model for the rest of Australia. The quality of this Act owes a great deal to the efforts and pioneering work over many years of the Victorian Aboriginal Child Care Agency.
1.	The Act itself states that ‘adoption is absent in customary Aboriginal child care arrangements’ (section 50(1)).
2.	The relevant provisions are said to be enacted in recognition of Aboriginal self-management and self-determination (section 50(1)).
3.	The court is not to make an adoption order in respect of an Aboriginal child unless satisfied,
	•	that the consenting relinquishing parent(s) has received counselling from a gazetted Aboriginal agency or has expressed in writing the wish not to receive counselling,
	•	that the wishes of the parent(s) regarding the religion, race or ethnic background of the proposed adoptive parents have been considered in the selection of those parents, and
	•	that the proposed adoptive parents are members of the same Aboriginal community as the relinquishing parent(s) or one of them is.
4.	If a member of the same community is not ‘reasonably available’, then the adoptive parents, or one of them, must be a member of an Aboriginal community. If such parent(s) is not reasonably available then another family can be approved, provided a gazetted Aboriginal agency approves of the choice.
5.	The relinquishing parent’s consent and the court’s adoption order can be made on the condition that the birth parent(s), other family and other community members have a right of continuing access to the child (sections 37 and 59; see also section 59A).
6.	The Department is obliged by law to inform an Indigenous child of his/her Aboriginality when he/she reaches 12 years of age (section 114).
The role of gazetted Aboriginal agencies, notably the Victorian Aboriginal Child Care Agency, is further strengthened by departmental policy (Standards in Adoption 1986). This requires both departmental and non-governmental adoption agencies to maintain consultation with the Aboriginal agency during all stages in the placement of an Aboriginal child. The Aboriginal agency must be consulted before any placement of an Aboriginal child, even when the proposed adoptive parents are Aboriginal (something left open by the Act). Finally, the policy makes clear that the Aboriginal agency has a right of veto over the proposed adoption of an Aboriginal child by non-Aboriginal applicants.

Numbers and effects
The following table summarises the data available on the adoption of Indigenous children in each State and Territory during the 1990s. In the five year period at least 60 Indigenous children were adopted (full SA figures are not available). One in every three of these children was adopted by a non-Indigenous family.
Adoptions of Indigenous children between 1 July 1990 and 30 June 1995

State	Number of children	Adoptive families	
NSW	35		16 to non-Indigenous families + 1 to an unknown family (ie ethnicity unknown)	
Victoria	0		
WA	7	1 to a non-Indigenous family	
Queensland*	15	1 to a non-Indigenous family	
SA	?	1 to a non-Indigenous family	
NT	3	1 to a non-Indigenous family	
Tasmania	0		
ACT	0		

Source: NSW Law Reform Commission Research Report ‘Aboriginal Child Placement Principle’ 1997, Appendix L.
*	Queensland data supplied to the Australian Institute of Health and Welfare shows 14 adoptions of Indigenous children only eight of whom were adopted by Indigenous families. However, Queensland states the information in the table is more reliable.

The reason for placement with non-Indigenous families is known for only four of the 16 NSW adoptees so placed. All four were State wards. The Aboriginality of two of the children was only traced late in the adoption process and their placement with non-Indigenous families followed consultation with Aboriginal workers. The other two were aged 16 and 18 years respectively, chose not to identify as Aboriginal and consented to their own adoptions (NSW Law Reform Commission 1997). The birth parent(s) of the South Australian child adopted into a non-Indigenous family consented to the adoption. The Queensland child was placed with a non-Aboriginal family at the request of the Aboriginal birth mother who has continuing contact with her child (NSW Law Reform Commission 1997).

In 1994-95 alone, 12 Indigenous children were adopted by non-relatives. Five of these children were adopted by non-Indigenous people. One non-Indigenous child was adopted by an Indigenous person (Angus and Golley 1995 page 24).

The harm which can accrue to Indigenous children in ‘inter-racial’ adoptive families has been recognised for almost two decades in Australia.

The problems of identity confusion and alienation appear to be related to those situations which place the child in limbo. On the one hand the child senses he is not fully accepted by the white community into which he has been adopted, and on the other hand he is isolated from his own Aboriginal community. What tends to fill the gap then of isolation from his own community are the often negative stereotypes of Aboriginal people commonly portrayed in the media, literature and in some instances by the adoptive family. Through constant exposure to this conflict the child inevitably becomes alienated from both cultures (Atkinson 1983 page 165).

There is evidence, both from within Australia and from comparable countries, that inter-racial adoptions are more prone to breaking down than intra-racial adoptions. The South Australian Aboriginal Child Care Agency estimated in the late 1980s that 95% of Aboriginal child/non-Aboriginal parents adoptions broke down and that 65% of these breakdowns occurred during adolescence or later teenage years ‘when their adoptive parents were unable to cope with their problems of alcohol abuse, offending behaviour, drug abuse, depression, self-destructive behaviour, emotional stress and identity crisis’ (Butler 1989 page 29). Especially predictive of future breakdown caused by the child’s distress are parental denial or denigration of the child’s Aboriginality, racial prejudice including harassment and taunts faced by the child at school which is not treated seriously by the parents and denial of contact between the child and Aboriginal role models (Atkinson 1983).

Aboriginal children who are brought up by white families frequently face identity problems when they reach adolescence. White parents cannot understand their experiences and may reject the child or fail to help him resolve questions of identity and conflict between black and white cultures (Homes for Blacks 1976 page 161).

The case of James Savage (birth name Russell Moore) is illustrative.

Savage was taken from his young Aboriginal mother shortly after birth [in 1963] … Unknown to his Aboriginal family, when only four days old, he was placed with the Savages, a white Australian couple, who subsequently adopted him and then moved to California when Savage was six and to Florida several years later. His adoptive family returned to Australia when Savage was seventeen, leaving him to fend for himself in the United States. By the time of his murder conviction he already had a considerable adult and juvenile record dating back to his early teens, as well as a drug and alcohol problem.

[Family friends testifying at his trial stated] that Savage was disciplined more than his adopted brother and sister, that he seemed afraid of his adoptive father, and that he seemed out of place as a black person among whites … [Psychiatric expert evidence was given to the effect that he was substantially impaired emotionally and had a personality disorder to which drug and alcohol abuse had contributed] (Cronin 1992 page 15).

In possession of this evidence, the jury which convicted James Savage recommended life imprisonment in preference to the death penalty. He remains in prison in Florida, not to be released for 25 years.
Evaluation
Self-determination
The Victorian model gives Aboriginal agencies an entitlement to be consulted at all stages in the consideration of adoption of an Indigenous child and a right of veto over a proposed placement with non-Aboriginal adoptive parents. It is the strongest implementation of the principle of self-determination in adoption practice. Other jurisdictions recognise the importance of consultation with Indigenous agencies and, provided those agencies are adequately resourced, could readily take the additional step of entrenching the role of those agencies in the placement of Indigenous children.

A difficulty may arise in relation to children not identified as Indigenous by the relinquishing parent. The Aboriginal Child Placement Principle and the involvement of Indigenous agencies do not come into play until a child relinquished for adoption is identified as Indigenous. In Tasmania there is no formal definition of Aboriginality for this purpose. The department relies on the Aboriginal Family Support and Care Program to identify Aboriginal children. This is problematic, however, when a relinquishing parent does not identify the child as Aboriginal and also insists on the confidentiality of the adoption process. This would make it impossible to call on the Program for advice and assistance.

In Queensland, Victoria, Western Australia, South Australia (if, as expected, the definition in the Children’s Protection Act 1993 (SA) is used) and the ACT the familiar three-pronged definition of ‘Indigenous’ is used: a person is Indigenous if he or she is of Indigenous descent, identifies as Indigenous and is accepted as such by the Aboriginal or Torres Strait Islander community. In the case of a young child or baby, identification by the parent is substituted for self-identification. In Queensland, an Indigenous agency may be consulted, but only where there is no parent or other relative to provide the identification. In light of the relinquishing parent’s right to confidentiality, this means that an Indigenous child will not be treated as such where the relinquishing parent does not identify as Indigenous herself or himself or does not identify the baby as such or where a non-Indigenous relinquishing parent does not notify the department that the child’s other parent is Aboriginal or a Torres Strait Islander.

The practical problems are not entirely overcome by the alternative approach taken in NSW and the NT. There, self-identification and identification by the relinquishing parent are not aspects of the definition of Aboriginality. Instead a child is Indigenous if descended from an Indigenous person. The difficulty remains that the department often relies on information from the relinquishing parent as to the heritage of the child.

Legislation could require the department or non-government adoption agency to establish to the best of its ability the cultural heritage of every child surrendered for adoption. This positive duty would authorise the department or agency to breach the mother’s confidentiality to the extent needed to trace her own and the father’s background, possibly by making enquiries through an Aboriginal Children’s Service.

Non-discrimination
Failure to appreciate different child-rearing values in Indigenous societies leads non-Indigenous social workers and others to dismiss as neglectful the common practice of shared parenting. In the context of adoption it also leads adoption agencies to ignore the rights of Indigenous extended family members to have a say in the placement of the child and to dismiss the possibilities of placement orders less permanent than adoption in favour of the extended family and of adoption by an extended family member.

In Aboriginal culture, children are the responsibility of the extended family and not just the biological parents alone. Even under normal circumstances the extended family plays an important role in the upbringing of Aboriginal children. Where the biological parents cannot or do not provide for their own children’s care, the maintenance of care is guaranteed through the extended family structure (WA Adoption Legislative Review Committee 1989 page 24).

The exclusion of the unmarried biological father and his family from the adoption decision, especially when the father’s relationship with the birth mother was publicly declared, is viewed with dismay. Adoption legislation historically only required the consent of the biological father if he was legally married to the birth mother. If not, the biological father need not even be informed of the child’s relinquishment for adoption.

The Australian Law Reform Commission recommended in 1986 that Aboriginal customary law marriages should be recognised for the purpose of requiring the consent of both parties to the adoption of their child (page 196). Traditional marriage now entitles the biological father to have a say in Victoria, SA and the NT. However, no jurisdiction formally provides for other family members to be consulted on the relinquishment decision.

Before my son’s birth and adoption I had been living in a defacto relationship with the child’s Mother Gloria since [early 1990] through till [early 1992] during which time we had a son together named Peter and upon her leaving me in [early 1992] to live in a 2ND defacto relationship … she was already pregnant with my 2nd son Andrew …

At the time of my 2nd son’s birth and adoption I had no knowledge of either his birth nor his adoption; because [two weeks after his birth] during a private discussion with Gloria she informed me that the child had died, therefore I feel wilfully & knowingly she deprived me of the knowledge and at the time the choice in the matter of adoption, deliberately lying to me for her own ends without consideration for family ties between Peter and Andrew, being full brothers.

If, at the time of birth, I had been informed of Andrew’s existence and that Gloria did not intend to keep him, then I myself would have applied for full custody of my son …
Confidential submission 9, Queensland: father Aboriginal, mother non-Aboriginal; Andrew was adopted by an Aboriginal family.

The Queensland Department advised the Inquiry that,

… in the case of a child whose parents were not married to each other at the conception of the child, and in relation to whom there is no other guardian by virtue of s. 6 of the Act, the consent required for the adoption of the child is that of the birth mother.

However, this is not to say that the birth father is not considered and consulted by the Department in relation to the custody and guardianship of the child.

Wherever possible, the Department attempts to ascertain the identity of the birth father of the child, and what his wishes are in relation to the child’s future. The identity of the birth father is, however, often totally dependant on whether the birth mother wishes to, or will, identify him. Birth mothers are encouraged to discuss this with the birth father of their child …

The information forms [received by the Department prior to approval of Andrew’s adoption] contained the birth father’s name and the information that the birth mother had not informed the birth father about the birth. The forms also contained the information that the birth mother had told family and friends that the baby had died. The forms do not specifically mention whether the birth mother had originally told the birth father about the pregnancy or whether she intended to tell the birth father himself that the baby had died.

The birth father was not contacted about the child or the adoption (document on file, confidential submission 9).

The full involvement of Indigenous child and family service agencies in placement decision-making is the best safeguard of equity for Indigenous children and their families. The entrenchment in legislation of the Aboriginal Child Placement Principle, with its declaration that the best interests of Indigenous children are typically best served by their remaining in the Indigenous community, preferably in their own families and communities, would further protect them from the potentially discriminatory effects of placement in non-Indigenous families.

The assessment of prospective Indigenous adoptive families is another area in which discrimination is likely to occur. The qualifications and procedures applying to prospective adoptive parents can deter and even disqualify a high proportion of Aboriginal adopters. 

It is essential that the roles of recruiting, assessing, training and supporting Indigenous adoptive parents and, in rare cases where it is in the child’s best interests, non-Indigenous adoptive parents for an Indigenous child are taken on by Indigenous community-based children’s and family services agencies. The following summary of Indigenous concerns raised at the First Australian Conference on Adoption in 1976 can be qualified 20 years later by reference to departmental cross-cultural training initiatives and employment of Indigenous officers. However the central analytical point remains valid.

Current adoption law and practice reflects the values of white professional middle class society and is totally unresponsive to the needs of Aboriginal children requiring care. Criteria adopted for the selection of parents disqualify most Aborigines and reflect underlying values and assumptions which are often diametrically opposed to those characterising Aboriginal society. For the Aboriginal child growing up in a racist society, what is most needed is a supportive environment where a child can identify as Aboriginal and get emotional support from other blacks. The supportive environment that blacks can provide cannot be assessed by whites and is not quantifiable or laid down in terms of neat, easily identifiable criteria. Criteria adopted by Social Welfare Department which relate to wealth, material possessions and employment reflect ‘standards’ in the dominant society. Such standards are not accepted by blacks and are not considered to be adequate substitutes for love and unqualified acceptance as an Aborigine (Homes for Blacks 1976 page 163).

Aboriginal people maintain that they are uniquely qualified to provide assistance in the care of children. They have experienced racism, conflicts in identity between black and white and have an understanding of Aboriginal life-styles … These people … are in a unique position to understand the needs of Aboriginal children and have a breadth of experience and empathy with Aboriginal children that few professional social workers could claim to have … Thus control of placement of Aboriginal children by blacks should not be dependent on blacks possessing white man’s qualifications, but should be in recognition of their experiences which enable them to determine what is in the best interests of each child (Homes for Blacks 1976 page 164).

Legal marriage between the adoptive parents was long a pre-requisite and remains so in some jurisdictions. The requirement has been relaxed in NSW by treating the traditionally married couple as de factos (section 19) and in Victoria (section 11), SA (section 4) and the NT (section 13) by recognising tribal or traditional marriage as qualifying the partners to adopt.

The standard application procedure usually includes ‘making application in the approved form’ and paying an assessment fee.

First, few aboriginal families apply through the formal channels for adoption of a child. The procedure for applying to adopt or foster a child is unnecessarily bureaucratic and aborigines are alienated by the process of form filling, numerous interviews and home visits. They object to the imposition of white middle class values and standards imposed by social welfare officers, which produce in them feelings of inadequacy and inferiority.

Second, the criteria adopted in each of the states reflect values of the dominant society and are often indiscriminantly applied to all persons seeking to adopt or foster a child, whether the child is white or of racial origin.

The criteria are alien to aboriginal values and lifestyle and few aboriginal families meet them all (Sommerlad 1977 page 170).

A focus on Aboriginal values and practices can neglect the quite different values and customs of Torres Strait Islanders. It is potentially discriminatory to include Torres Strait Islanders, in legislation, policy and practice, under the rubric ‘Aboriginal’. Their different values are less likely to be accorded respect.

Cultural renewal
Children are the most precious of cultural resources. Adoption practice which emphasises their retention in their communities will best enable those communities to secure their cultural survival. The Aboriginal Child Placement Principle directs adoption agencies to prefer people who have the appropriate cultural relationship with the child.

Coherent policy base
Adoption practice in relation to Indigenous children needs to be consistent with Indigenous family welfare practice generally. There remain significant differences within jurisdictions in relation to child welfare and adoption on key matters such as whether the Child Placement Principle is entrenched in legislation and what role is played by Aboriginal and Islander child care agencies. In NSW for example the Principle is entrenched in welfare legislation but not in adoption legislation. In South Australia gazetted Aboriginal agencies play a role in welfare placements but not in adoption placements.

Adequate resources
Two key resource issues arise in this context. The most significant is the resourcing of Indigenous agencies,
•	to consider the situation of each child referred fully: including thorough research into the child’s and parents’ background and family and community connections,
•	to recruit, train and provide continuing support to prospective Indigenous adoptive parents,
•	to counsel prospective relinquishing parents: including tracing the child’s father and his family to ensure they are consulted and being able to access family support information as needed.

As discussed in Chapter 21, AICCAs are inadequately resourced to perform these roles as effectively as needed.

The second resource-related issue is that of the training provided to adoption decision-makers, notably departmental officers, workers in non-government adoption agencies, judges and, in Tasmania, magistrates. All require thorough induction in the principles underlying the legislation and departmental policy relating to the placement of Indigenous children. The skills needed by the departmental officer and adoption agency include recognising an Indigenous child, knowledge of local Indigenous culture and family relationships, ability to involve relevant Indigenous agencies from the start of the process and through all stages, sensitivity to the impact of the history of forcible removals on Indigenous people’s contacts with welfare officers, and a commitment to the principle of self-determination. Judges dealing with Indigenous adoptions, like judges in other situations involving Indigenous people, require training in Indigenous culture, values and relationships as well as Indigenous history, especially the history and impacts of forcible child removal, if they are to perform their roles adequately.

Conclusion
Adoption is contrary to Aboriginal custom and inter-racial adoption is known to be contrary to the best interests of Aboriginal children in the great majority of cases. The table above shows that adoption of Indigenous children has been reduced to or almost to nil in jurisdictions where the Aboriginal Child Placement Principle is entrenched in legislation and welfare departments and adoption agencies are required to work with Aboriginal and Islander child care agencies when placing Indigenous children. Where the Principle finds its only recognition in departmental policy, adoption of Indigenous children continues. 

Graham
I was adopted as a baby by a white European couple. They were married at the time. They couldn’t have children and they’d seen the ads about adoption and were keen to adopt children. 

There were seven of us altogether. They adopted four people and had two of their own. The first adopted person was Alex. He was white. The next one down from that is Murray who was American Indian. Next down from that was me, Graham. The next person down from that was Ivan and they were the five who were adopted into this white family. The next two after that were their own.

My adopted mother loved children and that’s why she wanted to do this so-called do-gooder stuff and adopt all these children. After that, from what I can gather is she did the dirty on my adopted white father and they broke up. He walked out and started his own life, and she was left with seven children. Alex was 10 years older than me and he had to take on many of the roles.

Then from there on in, one by one we were kicked out at the ages of 13. It wasn’t her own family members [the two youngest] that were kicked out. It was the five that were adopted. I must say Alex never got kicked out, although he suffered. He had to look after us and he couldn’t go out and do what a teenager did and go roller skating or … So he never got kicked out because she needed him to look after us basically.

Twelve, thirteen was the age at when she decided like we’re uncontrollable, we’ve got this wrong with us, we’ve got that wrong with us, we’ve got diseases, we’re ill all the time, we’ve got mental problems, we’ve got this, we’ve got that. She used to say that to us, that we had all these things wrong with us.

Murray was the first to go. When he turned 13 he got booted out because she made out that he had this wrong with him again. He stole things, he did this, he did that. He went to an institution. So seeing that we’re Indigenous we all had the double effect: one was adoption and one was institutionalisation.

They took Murray. He went to [a Queensland boys’ home]. Murray got caught up in the prison scene because he started stealing and whatever. He was angry. He was in the Home for two years. He got involved in a few stealings and he had to go to Westbrook institution which is a lock-up. 

There’s a difference between care and protection and care and control. Where Murray first went into care and protection and then he had to go into care and control.

After that the next person to go wasn’t me. I wasn’t quite 12, 13, the uncontrollable age. Ivan, who was the one aged below me, wasn’t adopted properly. He was sort of fostered in a way. There was a legal technicality there. So because he wasn’t adopted properly, another family took him over and he’s still with them today [now an adult].

So I didn’t realise my time was coming, but basically when I hit the ages of 12 and 13 I was next to go. She met this new fellow. She wouldn’t marry him until I was out of the scene. She basically said, ‘Oh Graham is uncontrollable’. So she got rid of me as best way she could without her feeling that she was doing wrong.

Confidential evidence 441, New South Wales: Graham was placed in short term respite care but his adoptive mother did not retrieve him. The court stepped in and an order for care and protection was made in 1985. He was placed in the same boys’ home as his brother Murray. He was 13 years old. He remained in the Home until he turned 18. Having failed almost every subject in secondary school, Graham is now about to complete a university degree.

In the hard copy version of this report there is a reproduction of the following item:
 Bush Family, Snake Bay, Melville Island
Courtesy Heide Smith.

I don’t want to have kids, not in this society. ‘Cause I reckon it’s cruel to have a child in this society. If I was taken away, my mother must have been taken away from her mother, and if I was taken away from my mother, of course my child would be taken away from me.
Confidential evidence 166, South Australia: woman fostered as a baby in the 1960s.

23		Family Law
Family law plays a role in the ‘placement and care’ of Indigenous children when parenting disputes come before the Family Court of Australia (except in WA where the State Family Court deals with all family law matters) or those lower courts, presided over by magistrates, which have power to deal with them. The parents do not have to be married: children born outside marriage are treated in the same way as children born within a marriage.

A parenting dispute is typically between the child’s two natural parents. The parents may disagree where the child is to live (formerly ‘custody’ and now ‘residence’) or whether the other parent should be entitled to see the child and, if so, how often (formerly ‘access’ now ‘contact’). Disputes which could result in an Indigenous child being ordered (‘residence’ order) to live in a non-Indigenous family and community are usually those where one parent is Indigenous and the other is not. Alternatively, the Indigenous parent’s mother, sister, brother, new partner or other relative may be in a dispute with the child’s non-Indigenous parent or family.

In evidence to the Inquiry, Family Court Justice Richard Chisholm pointed out the difference between a Family Court residence order dispute and a welfare placement dispute (for example, relating to foster care or adoption). He concluded that the Aboriginal Child Placement Principle can be comfortably applied, consistently with the best interests of the child, in the latter case but not in the former.

I think there is a very important distinction to be drawn between situations in which a child welfare agency has to make a decision about placing a child and they have to decide which foster parents or adoptive parents … they might place a child in, where the child has been separated from the family for one reason or another. And that’s a situation where the decision-maker has to choose from a range of possible placements for a child. That seems to me to be quite a different situation from what used to be called ‘custody cases’ where you have got a competition between two people who each claim the child and the decision-maker has to choose between them.

… if you are in a situation where you’ve got a range of possible placements to choose from it seems to me that it is much easier to have a rule that says, ‘Prefer some placements to others’ (evidence 654).

In other words, the guiding principle of the best interests of the child is easier to accomodate within the Child Placement Principle when there is a range of placement options than when the choice is between two biological parents.

Family Law Act 1975

The Family Law Act 1975 (Cth) was amended in 1996 (effective from 11 June). Two relevant provisions introduced co-operative parenting which means that, regardless of where the child resides, both parents share continuing responsibility for all decisions relating to the child, except with respect to residence and contact and amended slightly the guidelines for determining the child’s best interests (previously the child’s ‘welfare’) (Lisa Young submission 816 pages 4-5).

Under the Family Law Act the best interests of the child are the paramount consideration in any decision about a child. Justice Chisholm explained how ‘best interests’ has been interpreted.

[It] covers a wide range of matters. It ‘is not to be measured by money only, nor by physical comfort only … The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded’ … [It includes] ‘all factors which affect the future of the child’ … It includes the child’s happiness … It includes both the immediate well-being of the child and matters relevant to the child’s healthy development … (submission 654 pages 5-6).

The fact that the child’s best interests are paramount means that the court’s orders will seek to secure those best interests even if this seems unfair to one of the parents.

… when the governing principle is that the child’s best interests are the paramount consideration, the court’s single task is to make whatever orders it considers will best promote the welfare of the children who are the subject of the proceedings. It follows that the court will make the orders that it considers will best promote the welfare of the child, even if such orders lead to what might be regarded as injustice between the parties (Justice Richard Chisholm submission 654 page 7).

The guidelines
Deciding what is in a child’s best interests is largely a matter within the discretion of the particular judge. However, the Family Law Act provides some guidance on what matters have to be taken into account in making that decision. Section 68F (paraphrased) lists,
•	the wishes of the child;
•	the relationship the child has with each parent and other people;
•	the likely effect of any change (for example, of residence);
•	the child’s right to maintain personal relations and direct contact with both parents regularly and the practical difficulty and expense of that;
•	the capacity of each parent to provide for the needs of the child, including emotional and intellectual needs;
•	the child’s maturity, sex and background, including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders;
•	protecting the child from physical or psychological harm;
•	the parents’ attitudes to the child and to their responsibilities as parents;
•	whether there has been violence in the family;
•	whether stability is to be preferred (that is, avoiding further litigation); and
•	anything else the court considers relevant.

The full significance of the inclusion of reference to Indigenous peoples specifically in the guidelines is not clear and will need to be spelt out by the court. Do the guidelines direct a judge to recognise an Indigenous child’s need to maintain a connection with his or her culture? Or do they simply invite the judge to decide whether the particular child has that need? A literal interpretation supports the latter view and Justice Chisholm tentatively came to this conclusion in evidence to the Inquiry.

My own tentative view is that the significance of that provision [section 68F] is probably more to set out a checklist of things to be looked at rather than an attempt to attach weight to particular factors (evidence 654).

Similarly, family law lecturer, Lisa Young, submitted that the list of matters to be taken into account ‘merely helps the Court keep at the forefront of its mind the sorts of issues that are relevant to such a determination’ (submission 816 page 4). This interpretation is supported, too, by the absence from the Act of any reference to the child’s right, ‘in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language’ (article 30 of the Convention on the Rights of the Child). The absence of reference to this right in the Act is odd in light of the fact that the 1996 amendments were largely driven by a desire to reflect more closely the Convention on the Rights of the Child (Lisa Young submission 816 page 4).

The court often obtains much of the evidence about the matters listed in the guidelines from a ‘Family Report’ (section 62G). The court can order a Family Report and it will be done by a family and child counsellor or a welfare officer, typically social workers or psychologists. The counsellor interviews all the people involved, including significant people in the children’s lives, and often visits the home or homes. The counsellor makes ‘a professional assessment of the emotional and psychological factors present in the two competing family systems set up by the separated parents, and the children’s and parents’ roles within those systems’ (Hume and Stewart 1996 page 14). Sometimes, too, the counsellor will ascertain the child’s wishes: 
children cannot give evidence in the Family Court and the parents are recommended not to prejudice the issue by presenting evidence themselves of their child’s wishes (Hume and Stewart 1996 pages 3 and 14; under Order 23 Rule 5 the court may take a child’s evidence in chambers but in practice this is never done).

Long-term welfare of Indigenous children
The Family Court has recently dealt emphatically with the related topic of how to decide the best interests of a child in the long-term when there is a dispute between an Indigenous parent (or family) and a non-Indigenous parent (or family). Previously there was a tendency to ignore the significance of Aboriginality and Aboriginal culture, some judges and magistrates taking the view that ‘the need to treat people equally before the law prevents them giving much weight to [these] issues’ (Nicholson 1995 page 11).

However, following the 1995 case In the marriage of B and R, the court is more likely to understand the profound difficulties faced in adolescence and later life by the great majority of Indigenous children brought up in non-Indigenous families. The court in that case rejected the ‘equality’ argument as based on a misunderstanding of the true nature of equal treatment. It would in fact be unjust to treat as equals people who are not.

… all people should be treated with equal respect. By recognising that this represents the essential content of the ideal of equality, one realises that equal justice is not always achieved through the identical treatment of individuals (B and R page 621).

In B and R the Full Court of the Family Court held that ‘the Aboriginality of a child is a matter which is relevant to the welfare [now best interests] of the child’. The court summarised a wide range of research on the subject (page 605).

A. In Australia a child whose ancestry is wholly or partly indigenous is treated by the dominant white society as ‘black’, a circumstance which carries with it widely accepted connotations of an inferior social position. Racism still remains a marked aspect of Australian society …

B. The removal of an Aboriginal child from his/her environment to a white environment is likely to have a devastating effect upon that child, particularly if it is coupled with a long term upbringing in that environment, and especially if it results in exclusion from contact with his/her family and culture.

C. Generally an Aboriginal child is better able to cope with that discrimination from within the Aboriginal community because usually that community actively reinforces identity, self-esteem and appropriate responses …

D. Aboriginal children often suffer acutely from an identity crisis in adolescence, especially if brought up in ignorance of or in circumstances which deny or belittle their Aboriginality. This is likely to have a significant impact upon their self-esteem and self-identity into adult life.

The court concluded that, because of the relevance of the child’s Indigenous ancestry to his or her future well-being, the Family Court should order the appointment of a special ‘separate representative’ for every Indigenous child involved in a parenting dispute. The role of the separate representative (that is, separate from the legal representatives for the mother and father or other family) would include ‘to examine these issues and ensure that all relevant evidence and submissions are placed before the court’ (page 624).

The court refused to import a presumption that, all other things being equal, an Indigenous child’s interests are best served by living with the Indigenous parent or other family member. Thus there is still no automatic preference for the Indigenous parent and the court ‘will not assume that Aboriginality is either an advantage or a disadvantage’ (Justice Richard Chisholm submission 654 page 9). On the other hand, it was acknowledged that ‘many of the matters … referred [to] above are now so notorious that it would be expected that a trial judge would take judicial notice of them’ (page 624). At the same time, the judge will also need ‘the detail and thrust of that material to be marshalled and presented to the court by an appropriately qualified expert so as to avoid the risk that the case may turn upon varying degrees of individual [ie judges’] knowledge’ (page 624). This would be the role of the separate representative.

Effectively, then, the Full Court has directed that a separate representative is to be appointed in every case involving an Indigenous child to gather evidence relating, especially, to the relationship between the child’s Indigenous heritage and his or her future well-being and interests.

Justice Chisholm told the Inquiry,

Hopefully, the decision of B and R will now put some of that expert evidence … into the cases so that it will be available to judges who read the cases. But that’s no substitute for expert evidence in the particular case and, of course the expert evidence in a particular case might relate to the precise community that’s involved. We can make some generalisations about Aboriginal people or Indigenous people, but there are often some quite significant differences from one community to another and you might want specific evidence about a particular community (evidence 654).

Lisa Young, however, raised a concern with the Full Court’s requirement in B and R that, ‘at least for the predictable future’, evidence establishing the relevant issues in each case will still need to be adduced (page 624).
There is an interesting analogy here with parenting cases involving homosexual parents. While the Court has gone through in detail the kinds of prejudicial arguments used against such parents, and largely discounted them, they still find the list of questions a useful checklist! In other words, they need to be reconvinced at every turn that homosexual parents are not naturally ‘bad parents’. My concern here is that the Court’s approach [in  B and R] is similar in that it is saying they acknowledge these facts as notorious but want them proved in every case just in case they do not apply for some reason in one case. No doubt such a case may come up but there is no danger that the relevant arguments won’t be put when that happens. Asking every applicant to take responsibility for these issues is the wrong solution – this is simply a matter of judicial education … Heterosexual parents are not asked to prove that they are not naturally bad parents, Caucasians are not put to proof of matters of such notoriety, why should Aboriginal (or homosexual) parents be? (submission 816 page 8).

Kinship obligations
The Family Court clearly has preferred the biological parent over a disputant extended family member in making custody (now residence) orders, although there is no presumption that that should be the case. Nevertheless, the Court, at least in reported cases, has yet to prefer an Indigenous child’s grandmother, for example, over the child’s natural, non-Indigenous father or mother. Moreover, section 61C recognises only the parental responsibility of each of the biological parents and fails to recognise the child-rearing obligations of others.

By privileging parents and relegating the rights of other family members, the Australian family law system conflicts with Aboriginal child-rearing values. In Aboriginal societies child-rearing responsibilities are shared.

[In Arnhem Land, NT and Mornington Island, Qld] it was the responsibility for an Aunt or Uncle to grow up the child of their sister or brother. It is a belief amongst Aboriginal people living in these areas that because an Aunty or an Uncle are not too emotionally involved with the child that they are able to make the best decisions for his education needs and the future role of the child in becoming a responsible member of the Aboriginal family group (Randall 1982 page 342).

By privileging stability of residence, the system similarly entrenches a bias against the Aboriginal practice of mobility of children among responsible adults and their households.

It seems that Indigenous families respond to the cultural inappropriateness of Australian family law by avoiding the Court and dealing with family disputes informally, or under traditional Law. As Chief Justice Nicholson recently acknowledged,

Historically, indigenous peoples have had little contact with the Court and have been reluctant to seek out the Court’s services, even in circumstances where their traditional methods of resolving disputes have  failed (1995 pages 11-12).

When a non-Indigenous parent seeks a residence or other parenting order, however, the Indigenous parent and family have no choice but to engage with the Family Court. Section 60B of the Act, which sets out the principles relating to children’s welfare, does recognise the child’s right of contact ‘with other people significant to their care, welfare and development’. This provision invites the submission of evidence in the particular case as to who those people are and how they might be involved in future. Judges familiar with Indigenous cultural values will be able to appreciate the significance of such evidence.

Judges, in common with all other professionals dealing with Indigenous families and children, require ongoing education comprising the history and effects of forcible removal as well as Indigenous cultural values, especially those relating to child-rearing. As Family Court Chief Justice Nicholson stated recently,

… if cases do go to court, and obviously some of them will, justice will not be achieved unless the judicial officer dealing with the particular case has some understanding of the cultural background of the persons with whom he or she is dealing. Misapprehension on the part of the judicial officer as to the meaning of evidence is likely to be productive of serious injustice … (1995 page 7).

‘Cross-cultural’ training was planned for 1995 and 1996 for some Family Court judges (Nicholson 1995 page 13, Cooke 1996 page 13). It was suggested to the Inquiry that judicial education needs to be ongoing.

… one of the failings of judicial education programmes is that they seem to be one-off affairs. Judges may only deal sporadically with cases involving Aboriginal parties (given the small number of cases that actually reach a final trial) and cannot be expected to keep at their fingertips knowledge passed on over the course of a few days some years ago … Moreover, education involves more than placing information at someone’s disposal and judges should have the opportunity to engage with the material in more depth in a more appropriate environment (Lisa Young submission 816 page 10).

All officers of the Family Court involved in parenting disputes will need ongoing training to ensure accessibility for, and to avoid discrimination against, Indigenous people. 
Relevant staff include counsellors and Registrars. The critical role of the counsellor or welfare office preparing a Family Report points to the need to ensure all such staff are thoroughly trained.  Our recommendation relating to the role of separate representatives and Aboriginal and Islander Child Care Agencies will only be effective if implemented within an environment of heightened awareness and sensitivity on the part of counselling staff, registrars, judges and all other court officers.
Western Australia
Unique among the States and Territories, Western Australia established its own State Family Court in 1975. The State Act allowed custody and access decisions about all children, whether born in a marriage or not, to be made in the same court on the same principles. Elsewhere in Australia children of a marriage were dealt with under the Commonwealth’s Family Law Act 1975 and ex-nuptial children under separate State legislation (except in the Territories where Commonwealth legislation applied). In the 1980s the other States transferred their jurisdiction over ex-nuptial children to the Commonwealth to permit those children to be dealt with under the Family Law Act.

A significant degree of uniformity has been maintained since between the Commonwealth Act and the WA Act. However the Commonwealth amending legislation in 1996 disturbed that uniformity. Legislation to restore uniformity is awaiting enactment in WA. The Inquiry’s recommendations are directed explicitly to the Commonwealth’s legislation on the understanding that Western Australia will amend the State Act in line with the Commonwealth.

24	 Juvenile Justice
The juvenile justice system is mimicking the separation policies of the past (Western Aboriginal Legal Service (Broken Hill) submission 775).

The most distressing aspect about the level of juvenile justice intrusion in the lives of young Aboriginal and Torres Strait Islander people is the fact that entry into the system is usually the start of a long career of incarceration for many (SNAICC submission 309 page 28).

The removal of Indigenous children and young people can occur by way of juvenile justice intervention either through the use of police custody or through the incarceration of a young person in a juvenile detention centre. The length of separation can vary from a few hours or days to months or years. However, as submissions to the Inquiry noted, the effects of the separation can last a lifetime.

The disproportionate number (or over-representation) of Indigenous children and young people in the juvenile justice system and in particular in detention centres has been recognised for two decades. One of the earliest attempts to assess its level occurred in 1977 during a symposium organised by the then Commonwealth Department of Aboriginal Affairs on the care and treatment of Indigenous young people in detention centres (Sommerlad 1977). During the 1980s there were numerous reports which outlined the over-representation of Indigenous young people in various State or Territory jurisdictions (Cunneen and Robb 1987, Semple 1988, Gale et al 1990, Cunneen 1990). These studies indicated Aboriginal over-representation in police interventions, in court appearances and in juvenile detention centres.

Aboriginal child care agencies and Aboriginal legal services throughout Australia consistently drew attention during the 1980s to the problems associated with the high levels of criminalisation of Indigenous youth (D’Souza 1990). Some commentators argued that the over-representation of Indigenous young people in juvenile corrections represented a continuation of earlier removal policies by way of a process of criminalisation (Cunneen 1990 and 1994, O’Connor 1994). Aboriginal organisations supported this interpretation in submissions to the Inquiry (see ALSWA submission 127, Western Aboriginal Legal Service (Broken Hill) submission 775 and SNAICC submission 309). Also supporting this argument is research in most Australian jurisdictions indicating not only that Indigenous young people are over-represented in the juvenile justice system but that they are most over-represented at the most punitive end of the system, in detention centres (Gale et al 1990, Wilkie 1992, Crime Research Centre 1995, Luke and Cunneen 1995, Criminal Justice Commission 1995). This phenomenon is now recognised by many governments (for example, Queensland Government interim submission page 90).

During the 1980s and early 1990s many Indigenous communities grappled with developing alternative mechanisms for dealing with young people who offend. These alternative Indigenous mechanisms have tended to be localised, inadequately funded and without any legislative base. However, a key principle in these developments has been implementing self-determination at the grass roots level. In other words, communities have continually sought their own solutions to the problem of the over-representation of Indigenous young people in the juvenile justice system (Dodson 1995, Dodson 1996, Cunneen and White 1995 pages 152-3).

The principle of self-determination and the need for the development of Indigenous community responses to deal with Indigenous young people were fundamental to the main recommendation from the Royal Commission into Aboriginal Deaths in Custody designed to prevent the removal of Indigenous youth through juvenile justice or welfare intervention. Recommendation 62 called on governments to negotiate with Aboriginal communities and organisations to find solutions. ATSIC has reminded the Inquiry of the importance of this recommendation (submission 684 page 42).

In the hard copy version of this report there is a reproduction of the following item:
Tandberg Cartoon

The processes of juvenile justice separations 
Police custody
The police play a pivotal role in the separation of Indigenous children and young people from their families and communities. The Inquiry has already documented this role in the history of removal policies. However, police still have a major function in bringing about separations. Most obviously, Indigenous children and young people are separated from their families and communities by being placed in police custody and held in watchhouses, lock-ups or cells.

The Australian Institute of Criminology specifically drew the links between past removal policies and contemporary use of police custody.

For many Aboriginal people, police officers taking children into custody and locking them in the cells, particularly in circumstances where this would not happen to a non-Aboriginal child, is a continuation of the practices of the past that have led to the Inquiry being established (submission 686 page 4). 

The issue of Indigenous children and young people in police custody was addressed by the Royal Commission into Aboriginal Deaths in Custody. A key recommendation was ‘that, except in exceptional circumstances, juveniles should not be detained in police lock-ups’ (Recommendation 242). The Convention on the Rights of the Child also requires that arrest and detention following arrest should be measures of last resort (article 37(b)). Alternatives should be utilised unless the circumstances are exceptional. An evaluation of State and Territory responses to Recommendation 242 found that it has not been adequately implemented (Cunneen and McDonald 1997 pages 182-184).

The Australian Institute of Criminology presented an analysis of the results of the August 1995 National Police Custody Survey which shows the extent to which police custody is utilised.

The significance of the survey’s findings to the Inquiry is that they help to illustrate the continuing heavy involvement of Indigenous children (compared to non-Indigenous children) in the criminal justice system, in particular the elevated proportion of Aboriginal children being held in the cells by police (submission 686 page 2). 

The following table shows the number and percentage of Indigenous and non-Indigenous youth aged 10 to 17 held in police custody nationally during the August 1995 survey period.
National Police Custody Survey, August 1995
		 Indigenous youth		Non-Indigenous youth		Total		
	Age	No	%	No	%	No	%	
	10	-	-	    1	100	    1	100	
	11	  4	57	    3	 43	    7	100	
	12	 24	67	   12	 33	   36	100	
	13	 65	59	   46	 41	  111	100	
	14	105	59	   73	 41	  178	100	
	15	151	44	  190	 66	  341	100	
	16	155	38	  250	 62	  405	100	
	17	200	30	  474	 70	  674	100	
	Total	704	40	1,049	 60	1,753	100	

Note:	It is not possible to distinguish Aboriginal from Torres Strait Islander young people in any juvenile justice data.

Some 40% of all young people held in police custody during the survey period were Indigenous. Indigenous children and young people comprise only 2.6% of the national youth population. In fact, the rate of custody per 100,000 Indigenous young people is 1,333 compared to a rate of 52 for non-Indigenous youth. The over-representation factor is 26.

The majority of children taken into police custody under the age of 15 years were Indigenous. That children of such a young age should be separated from their families, communities and community organisations is highly disturbing, particularly when such separations are not a feature of police interaction with non-Indigenous children. The issue of the relatively young age of Indigenous young people detained in police custody was raised by the ALSWA which told the Inquiry that one in five Indigenous young people detained in WA police cells was 14 years of age or younger. Of these 92% already had an arrest history (ALSWA submission 127 page 334).

The following table shows the distribution of police custody of young people by jurisdiction throughout Australia. Not all States and Territories resort to the use of police custody to the same extent. Nevertheless, the data demonstrate that over-representation of Indigenous young people in police custody is a significant problem and that there are differential patterns of policing Indigenous children and young people compared to non-Indigenous children and young people.

Young people in police custody in each State and Territory, August 1995
				
	Indigenous youth		Non-Indigenous youth		Total		
State	No	%	No	%	No	%	
NSW	108	36	192	64	300	100	
Vic	16	7	209	93	225	100	
Qld	176	42	245	58	421	100	
WA	228	61	146	39	374	100	
SA	123	39	196	61	319	100	
Tas	3	9	31	91	34	100	
NT	45	69	20	31	65	100	
ACT	5	33	10	67	15	100	
Aust	704	40	1,049	60	1,753	100	

The majority of young people held in police custody in Western Australia and the Northern Territory were Indigenous young people. This issue is of particular concern in WA where the overall number in police custody is also high: 61% of young people held in police custody were Indigenous.

Other jurisdictions with large Indigenous populations also had relatively high proportions of Indigenous young people in police custody. These included Queensland with 42%, SA with 39% and NSW with 36%. WA also accounted for 32% of all Indigenous young people in Australia who were held in police custody, followed by Queensland which accounted for 25% of the total.

The Australian Institute of Criminology made a number of important points in relation to the use of police custody for Indigenous young people.

While there are many occasions where police officers will need to detain children who have committed offences or who are at risk of coming to harm, holding them in the cells at police lockups can rarely if ever be justified. In many cases, doing so breaches the police’s own standing orders and perhaps legislation. Apart from the most exceptional circumstances (and that surely cannot be 61% of the time in WA!) it breached Recommendation 242 of the Royal Commission into Aboriginal Deaths in Custody (submission 686 page 4). 

In WA detention in police cells is often not related to criminal matters at all. In the Kimberley region over 50% of juveniles detained in police cells were there because of alcohol use (ALSWA submission 127 page 334 referring to Crime Research Centre research). Public drunkenness is not a criminal offence in WA, although police retain the power to detain intoxicated persons. In addition, the Inquiry was told that the Young Offenders Act 1994 (WA) permits too much discretion to police officers by failing to place a positive onus on them to find alternatives to police cells when a young person is intoxicated (ALSWA submission 127 page 347).1

The Convention on the Rights of the Child article 37(c) requires the separation of juveniles from adults when young people are deprived of their liberty (see also ICCPR article 10(2)(b)). Article 37(c) of CROC also requires that every child is to be treated in a manner which takes into account the needs of persons of his or her age. The Commonwealth Government submitted a reservation on the relevant sections of both treaties,2 arguing that geography makes total segregation difficult to achieve and that responsible authorities should have the discretion to ‘determine whether it is beneficial for a child or juvenile to be imprisoned with adults’ (quoted by Aboriginal and Torres Strait Islander Social Justice Commissioner 1996 on page 205). The available empirical evidence strongly suggests that the ‘discretion’ disadvantages Indigenous young people.

Juvenile detention centres
The detention of Aboriginal youth is a form of child removal. This cannot be denied or ignored. Incarceration and its ensuing deprivation of liberty is a destructive and dehumanising experience (ALSWA submission 127 page 340). 

Concern about the over-representation of Indigenous young people in detention centres developed from the early 1980s. Most of the research was State-based, reflecting the nature of separate juvenile justice jurisdictions across the nation. There was great difficulty in deriving comparable national data on Indigenous over-representation. Indeed, the Royal Commission into Aboriginal Deaths in Custody noted, ‘At no level of the criminal justice system is statistical information more inadequate than it is with respect to juvenile offenders’ (National Report 1991 Volume 2 page 254). Although acknowledging the difficulties of interpreting the available data, there was a perception that the over-representation of Indigenous young people was increasing (National Report 1991 Volume 2 page 263).

Some of the data provided to the Inquiry indicate the upward trend in the incarceration of Indigenous young people during the late 1980s and early 1990s. The NSW Government noted that the proportion of Indigenous young people in detention centres had increased in the four years to 1994 (interim submission page 81). No explanation was given as to why this may have occurred. 

All Australian States and Territories have submitted quarterly returns to the Australian Institute of Criminology on the number of juveniles held in detention centres since 1982. However, it is only since 1993 that national information has been included which identifies whether a young person is Indigenous or not, thus permitting comparisons to be made.
Nationally some 36% of youth in juvenile correctional institutions on 30 June 1996 were Indigenous. The rate of incarceration was 540 per 100,000 Indigenous young people compared to a non-Indigenous rate of 25 per 100,000. 

Young people in juvenile corrective institutions, 30 June 1996
				
	Indigenous youth	Non-Indigenous youth	Total	
State	Noa	%	Rateb	Noa	%	Rateb	Noa	%		
NSW	102	30	746	238	70	36	340	100		
Vic	4	6	132	66	94	13	70	100		
Qld	84	61	594	53	39	14	137	100		
WA	61	57	734	45	43	23	106	100		
SA	18	22	572	65	78	42	83	100		
Tas	6	23	301	20	77	37	26	100		
NT	9	69	110	4	31	29	13	100		
ACT	1	14	324	6	86	17	7	100		
Aust	285	36	540	497	64	25	782	100		

Sources: Australian Institute of Criminology submission 686 and Atkinson and Dagger 1996.
a	These figures do not include young people over the age of 17 years who are held in juvenile correctional centres. Some jurisdictions (such as NSW) have significant numbers of young people in this category. Nationally, at 30 June 1996 an additional 37 Indigenous young people 18 years or older were held in juvenile institutions (Atkinson and Dagger 1996).
b	Rate per 100,000 of the relevant population. Rates quoted by the Australian Institute of Criminology are correct to two decimal places. The above rates have been rounded for ease of reading.

This table shows the number of Indigenous and non-Indigenous young people held, the percentage of the total which each group comprised and the rate of incarceration for each group. The majority of young people in juvenile correctional institutions in NT (69%), Queensland (61%) and WA (57%) were Indigenous. 

However, NSW had the highest number of Indigenous young people incarcerated (102) as well as the highest rate (746 per 100,00). WA’s rate of 734 was only slightly lower than that in NSW. Queensland and SA also had extraordinarily high rates (594 and 572 respectively). Nationally some 87% of Indigenous young people in detention are held in only three States: NSW, WA and Queensland.

Jurisdictional differences also indicate important considerations in relation to policy development. For example, unless we assume that Indigenous youth in WA are six times more criminal than Indigenous youth in Victoria, we need to consider what it is about government policy and legislation that leads to greater levels of incarceration of young people in the former State. Similarly the variations in incarceration by jurisdiction also have a positive side to them. They indicate that patterns of imprisonment ‘are not the product of immutable factors. They can vary. They can change. They can be improved’ (Dodson 1995 page 20).

Level of over-representation for Indigenous youth, 30 June 1996
Age	NSW	Vic	Qld	WA	SA	Tas	NT	ACT	Aust	
10-17	20.5	9.8	41.1	31.6	13.7	8.2	3.8	19.0	21.3	

This table shows the level of over-representation of Indigenous young people to non-Indigenous young people in correctional institutions by comparing the rates of incarceration in each jurisdiction. Thus in Queensland for example an Indigenous young person is 41.1 times more likely to be in juvenile correctional institutions than a non-Indigenous young person. Queensland has the highest level of over-representation, followed by WA and NSW. For Australia as a whole, Indigenous youth are 21.3 times more likely to be in a detention centre than non-Indigenous young people. 

The sex of a young person is also a significant factor as the following table shows.

Comparing males and females in juvenile corrective institutions, 30 June 1996

	Males	Females	Total	
	No	%	No	%	No	%	
Indigenous	258	90.5	27	9.5	285	100	
Non-Indigenous 	465	93.6	32	6.4	497	100	
Total	723	92.5	59	7.5	782	100	

Young males comprise the majority of youth in detention centres, irrespective of whether they are Indigenous or not. Most separations which arise directly as a result of criminalisation and incarceration affect young Indigenous males.

However, the table above also shows that Indigenous girls form a higher proportion of all girls in detention centres than Indigenous boys for all boys. Indigenous girls comprise 46% of all girls incarcerated while Indigenous boys comprise 36% of all boys.
Both of these points have important implications for the development of policy responses. To reduce the extent to which Indigenous young people are separated from their families and communities by incarceration requires a consideration of gender. The greatest possible reduction in separations would be achieved by policies that reduce Indigenous male incarceration. However, policies also need to consider the specific factors that may lead to the incarceration of girls such as previous physical and sexual abuse, drug and alcohol problems, homelessness and so on. These factors clearly have a greater impact on Indigenous girls than non-Indigenous girls since they constitute nearly half of all girls incarcerated.

A further point raised by the Australian Institute of Criminology relates to the extent to which Indigenous young people are held in correctional institutions on remand. At 30 June 1996, some 40% of Indigenous youth in institutions were on remand. The remaining 60% were serving custodial sentences. The data relating specifically to Indigenous girls showed that 59% were detained on remand. An analysis of the data over the period 1993 to 1996 showed that ‘at a national level, the gap between sentenced and remanded Indigenous juveniles appears to be closing … Queensland appears to demonstrate the most consistent trend in this direction’ (Australian Institute of Criminology submission 686 pages 6-7). Policy reforms are needed to secure further reductions in the numbers of Indigenous young people detained on remand.

Australian Institute of Criminology data enable a consideration of changes in the rate and number of incarcerated young people based on quarterly reports for the three year period September 1993 to June 1996.

Changing populations in juvenile corrective institutions

September 1993 to 30 June 1996
	Indigenous
	Non-Indigenous
	
	No	Rate	No	Rate	
Sept 93	211	408.0	472	24.1	
Dec 93	220	425.4	511	26.0	
Mar 94	257	486.8	525	26.8	
June 94	271	513.3	479	24.4	
Sept 94	248	469.7	465	23.7	
Dec 94	249	471.6	462	23.5	
Mar 95	309	585.3	509	25.9	
June 95	260	492.5	527	26.9	
Sept 95	274	519.0	497	25.3	
Dec 95	254	481.1	491	25.0	
Mar 96	276	522.8	478	24.4	
June 96	285	539.8	497	25.3	
There were 26% more Indigenous young people in detention at the end of June 1996 than there were at the end of September 1993. The rate per 100,000 of the Indigenous youth population incarcerated increased by 24% from 408.0 to 539.8. During the same period, the number of non-Indigenous young people in detention centres increased by 5%, while the rate increased by a similar percentage (4.7%). There has been a fluctuating but overall increase in Indigenous rates of incarceration in NSW and WA. In Queensland there was a steady rate of increase until early 1995 and then a levelling out of the rate (Atkinson 1996 page 6).

The Australian Institute of Criminology concluded,

There appears to be little cause for optimism in relation to the over-representation of Indigenous juveniles in detention. Of particular concern are the consistently high numbers of Indigenous youth in detention in NSW, Queensland and WA; the likelihood that very young detainees will be Aboriginal, the steady increase in the rate of detention of Indigenous juveniles in Australia; and, an apparent upward trend in the proportion of Indigenous remandees to sentenced Indigenous detainees. The level of over-representation of Indigenous juveniles in detention in Australia appears to be rising (submission 686 page 8). 

A further factor to be considered is the location of detention centres. Most detention centres in Australia are hundreds, if not thousands, of kilometres away from many Aboriginal communities from which the detention population is drawn. The distance makes it extraordinarily difficult for parents and relatives to visit incarcerated young people and therefore exacerbates the effects of removal. This particularly affects Indigenous children and young people because they are more likely to come from a non-urban background (Luke and Cunneen 1995). The problem has received attention previously in the research literature (Wilkie 1991 page 156, Cunneen and White 1995 page 236) and in evidence to the Inquiry (NSW Government supplementary information, WA Government supplementary information).

Finally, Indigenous children tend to enter the juvenile justice system at an earlier age and stay in the system for longer (Queensland Government interim submission page 90, Criminal Justice Commission 1995 page 16 and Wundersitz 1996 page 204). Not only is the rate of removal of Indigenous young people from their families much higher than non-Indigenous young people, they are comparatively younger and more geographically isolated from their family and kin. 

Juvenile justice legislation
Legislation, policy and practice provide the framework within which removals occur. Indigenous young people, like other young people in Australia, are subject to the criminal law and a range of other laws. ‘Juvenile justice legislation’ refers primarily to the legislation which establishes a separate system for dealing with young people when they have been suspected of committing, charged with or convicted of a criminal offence. In all Australian jurisdictions, except Tasmania, welfare matters have been separated from justice matters. In other words, children or young people who are deemed to be in need of care and protection are dealt with separately and in a different way from young people charged with a criminal offence. The separation has been accomplished in various jurisdictions either through separate legislation for criminal matters and welfare matters such as in NSW (the Children (Criminal Proceedings) Act 1987 and the Children (Care and Protection) Act 1987) or within the same legislation such as in Victoria where the Children and Young Person’s Act (1989) establishes separate divisions of the Children’s Court – the Family Division and Criminal Division – effectively separating welfare matters from criminal. Tasmania is the only Australian State to continue to operate under a system that mixes welfare and criminal matters (Child Welfare Act 1960). However, Tasmania is currently considering separating the jurisdictions by way of a Youth Justice Bill and Children and Their Families Bill (Cunneen and White 1995 pages 189-193, Tasmanian Government submission page D-23).

The formal separation of welfare and juvenile justice is not always apparent in practice, however. Indeed, young people who have contact with the child welfare system are more likely to come into contact with the juvenile justice system.

Our belief is that there is actually a link between the two [juvenile justice and child welfare] in the sense that those who are taken from their families and placed in alternate care or out of home care, whether in institutions or foster care, are much more likely to come before the attention of the criminal justice system (SNAICC submission 309 page 28).

This phenomenon is particularly apparent with Indigenous young people.3 The formal separation has had effects which have not necessarily been beneficial. Some commentators have argued that a ‘justice’ model emphasising the ‘rule of law’ and ‘due process’ has in fact lead to a failure to consider discretionary issues particularly as they are exercised by police. Factors such as the utilisation of police discretion on the street, over-policing, police-youth conflict and racism have been ignored (O’Connor 1994 page 210, Naffine et al 1990) although they are the very issues likely to lead to disproportionate criminalisation of Indigenous young people (Cunneen 1994).
Juvenile justice legislation varies between jurisdictions and there are differences as to precisely what is covered by the legislation in each jurisdiction. Generally speaking, juvenile justice legislation covers,
•	principles applicable to dealing with young people accused or found guilty of offending,
•	definitions of a ‘young person’ or ‘child’,
•	police powers to proceed against a young person through the use of arrest, attendance notices or the issue of summons, as well as stipulating a preference for the use of attendance notices or summons rather than arrest,
•	diversionary schemes (such as cautioning, panels or family group conferences) and how they should be utilised.,
•	special considerations for young people relating to release on bail or detention in custody,
•	the Children’s Court’s special jurisdiction over children, what criminal matters the Children’s Court can determine and which matters must be dealt with by a higher court,
•	appealing against a Children’s Court decision,
•	sentencing options,
•	special requirements relating to restitution and compensation, and
•	establishment of detention centres and their operations (Cunneen and White 1995 page 177).

Indigenous young people, like other young people, are also subject to a range of general criminal laws and laws relating to criminal procedure. An Indigenous young person is most likely to come before the Children’s Court for a violation of the law under the Crimes Act or Criminal Code. Young people are also subject to the law governing public order under the various Summary Offences Acts and Police Offences Acts in different States and Territories. Again a sizeable proportion of young people brought before the courts will be there for violations of public order governed by this type of legislation. Public order charges are particularly prevalent against Indigenous youth.

Indigenous young people may also be subject to any general sentencing laws. For instance, in NSW the Sentencing Act 1989 sets out requirements in relation to fixed terms, minimum terms and additional terms of imprisonment, as well as the relationship between parole periods and imprisonment. In some cases specific sentencing requirements covering such matters as mandatory sentences or additional terms will be included in the juvenile justice legislation. The WA Young Offenders Act 1994 and recent amendments to the NT Juvenile Justice Act 1995 are examples of juvenile justice legislation containing specific sentencing regimes.

This report does not analyse section by section the Commonwealth, State and Territory legislation affecting Indigenous young people. Rather, it indicates some of the general issues which were common areas of concern among witnesses to the Inquiry. Some of the specific criticisms of particular pieces of legislation will be dealt with in later sections.

The particular vulnerability of children entitles them to special protection during investigation. Special considerations relate to the cultural background of the young person, particularly Indigenous young people. The ALSWA specifically noted that the WA legislation fails to address these issues comprehensively (submission 127 page 346). However, it is a problem common to most Australian juvenile justice legislation.

Some jurisdictions have adopted a general principle on the need to consider the cultural background of a child in any decisions made under juvenile justice legislation (for example section 4(g) of the Queensland Juvenile Justice Act 1992). However, this is inadequate in ensuring that key principles such as the right of Indigenous self-determination and the maintenance of Indigenous children with their families and communities are adhered to. There is no obligation to negotiate with Indigenous communities. When asked by the Inquiry how the court was provided with information which makes section 4(g) a meaningful obligation, the Queensland Government responded that ‘Aboriginal and Torres Strait Islander staff or community members provide information directly to the courts or indirectly through Departmental staff’ (final submission page 60). However, other evidence suggests that consultation in practice may be poor (Cunneen and McDonald 1997 pages 174-176).

There are also considerable variations in the extent to which police procedures for dealing with young people are set out in law. In some jurisdictions the process by which police should give cautions or the criteria which should be used in deciding which children should be cautioned for particular types of behaviour are not articulated in the legislation. For instance, many of the important decisions made in relation to the treatment of juveniles in NSW occur without a legislative base. Police cautioning of juveniles is regulated by ‘Commissioner’s Instruction 75 – Child Offenders’. There is no legislative support for the process and it exists essentially as a use of police discretion endorsed by the Police Commissioner (NSW Government interim submission page 77).

Police exercise wide discretion as to how a young person will be dealt by the authorities. The adverse use of this discretion in regard to Indigenous young people is a critical issue in drawing Indigenous youth further into the juvenile justice system.

Another key issue with juvenile justice legislation, with direct implications for self-determination, is that Indigenous interests are largely ignored when legislation is being introduced or amended. The ALSWA stated in relation to WA,
The lack of consultation and total absence of negotiation with the Aboriginal community on this Bill is contrary to recommendations of the Royal Commission into Aboriginal Deaths in Custody … No other Aboriginal community organisations were consulted in this process  (submission 127 pages 344-5). 

In NSW there was no consultation with Indigenous organisations when the Children (Parental Responsibility) Act 1994 was introduced. In the NT there was strong opposition by Indigenous organisations such as the North Australian Aboriginal Legal Aid Service (NAALAS) and the NT Aboriginal Justice Advisory Council (AJAC) to recent legislation introducing minimum mandatory imprisonment for certain offences. A recent survey of the implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody noted that inadequate consultation and negotiation with Aboriginal organisations about legislative changes was a national problem (Cunneen and McDonald 1997 pages 125-130, 170). 

Finally, the lack of adequate funding for Indigenous community-based alternatives to the formal juvenile justice system is a national problem. The lack of alternatives undermines self-determination at the local level and results in greater numbers of Indigenous young people ending up in institutions, effectively removed from their families and communities.

In addition Indigenous people generally are not in control of the design and implementation of preventive programs for Aboriginal youth. The attention of the Inquiry was drawn to the findings of Wilkie that,

[Most] targeted prevention programs have as their primary, stated target young Aboriginal offenders … Some of the services funded have an almost 100% Aboriginal client population. Yet few are managed by Aborigines and none are directly controlled by the local Aboriginal community. On the other hand most which cater for Aboriginal young people do not employ Aboriginal staff (quoted by ALSWA submission 127 on page 194). 

By and large, the main diversionary schemes in the various States and Territories have been introduced without proper negotiation with Indigenous communities and organisations and without a framework for control by Indigenous organisations where communities desire such control. Often this occurs at the same time as State and Territory governments publicly espouse a commitment to self-determination.

Juvenile justice policy and program responses
Each State and Territory has developed a range of policy and program responses to address the issue of Indigenous over-representation in police custody and detention centre populations. The following sections briefly describe the various initiatives available in each State and Territory.

New South Wales 
The NSW Government advised the Inquiry that the State’s Police Service has been participating in a whole-of-government approach to the problem of Aboriginal young people in the juvenile justice system. Two areas of relevance to the Inquiry are the Police Service’s ‘Youth Policy and Action Plan’ and the ‘Aboriginal Policy Statement and an Aboriginal Strategic Plan’. 

The Youth Policy and Action Plan aims to increase the use of alternatives to arrest, restrict the use of courts to a last resort and enhance fair treatment of young people. The Aboriginal Strategic Plan aims to reduce the number of Aboriginal people entering the criminal justice system and has a number of target policy areas. An advisory mechanism, the Aboriginal Police Council, was established in 1992. There are also 50 Aboriginal Community Liaison Officers in NSW, four regional Aboriginal co-ordinators and an Aboriginal client consultant. In addition there are 147 Aboriginal police officers (NSW Government interim submission page 78). An Aboriginal Employment Strategy was launched in December 1995 to raise Indigenous employment in the Police Service to 2% or greater.

The Department of Juvenile Justice has developed a number of programs for Indigenous young people including the Metropolitan Bail Hostel and the Nardoola Bail Hostel both of which provide accommodation and supervision for up to six Aboriginal young people. The Nardoola program is also expected to provide additional accommodation for young people on conditional discharge and a day program for young people on Community Service Order placements. The Dubbo Aboriginal Bail Support Program assists Aboriginal young people who have committed minor offences but are likely to be refused bail because they lack suitable accommodation (NSW Government interim submission page 87).

The Aboriginal Mentor Program involves Aboriginal people acting as mentors for Indigenous young people who are on remand or under supervision. The mentors provide support, guidance and advocacy and assist in meeting areas of identified need such as training. In the Riverina area the Safe Haven program recruits, trains and supports Aboriginal carers to provide assistance for Indigenous young people when they are unable to remain in or return to their own homes.
The South Sydney Youth Services – Court Support and Post Release Program targets both Aboriginal and non-English speaking background young people who have had previous contact with the juvenile justice system and are at risk of re-offending or about to be released from a detention centre. The program provides supervision of community-based orders, referrals for counselling and follow-up work.

The Ending Offending Program is a general program which provides an alternative for all young people facing incarceration. It is a compulsory program of one day a week for 12 weeks covering a range of lifestyle, drug and alcohol, employment and personal development issues. 

The Department of Juvenile Justice has 53 identified Aboriginal staff positions. Of these, 19 are juvenile justice officers with responsibilities for supervision and the preparation of court reports. There are nine Aboriginal Program Development Officers responsible for Indigenous non-custodial programs and liaising with Aboriginal communities. In addition, there is a Coordinator of Aboriginal Programs.

South Australia 
The SA Government recognised the over-representation of Indigenous young people in the juvenile justice system and identified three programs specifically designed to impact on offending levels: the ‘cautionary diversion program’ designed to divert Indigenous young people at the point of contact with the police, the ‘Family Connections Program’ which uses intensive family intervention and the ‘Alternative to Detention Program’ (interim submission page 41). The cautionary diversion program involves a number of youth workers operating in particular areas to assist in maximising the use of cautions by police and reducing the number of arrests through a number of identified strategies. The program is to operate along the lines of the Youth Support Group in Adelaide which has apparently been disbanded (Wundersitz 1996 page 205).

The Inquiry was told of a number of programs and alternatives for young people, some specifically for Indigenous youth. Diversionary programs include the Youth at Risk Program. There are also sentencing alternatives such the ‘Operation Flinders’, a wilderness trek with several weeks of follow-up support, and Frahn’s Farm, an Aboriginal run rehabilitation program (Planning Advisory Services 1995 appendix 1). Aboriginal ‘safe houses’ or bail hostels have been established in Adelaide and Port Augusta.

Victoria
Indigenous juvenile justice policy is implemented in Victoria through a number of key strategies including a sentencing hierarchy which facilitates community-based diversion, a stronger court advice function, a Bail Advocacy Service and After Hours Bail Placement Service, the Koori Justice Workers Project and a recognition of the importance of primary prevention.

The Koori Justice Workers Project operates through local Aboriginal co-operatives and other Indigenous organisations. The positions are funded by the Victorian Department of Human Services but the nature of the specific tasks which are undertaken are developed at the community level. The project was initiated to address the problem of Indigenous young people failing to complete non-custodial orders. It now operates with a focus on crime prevention, advocacy and supervision. The project allows juveniles on orders or in diversionary programs to be supervised by members of the Aboriginal community. The Victorian Government advised the Inquiry that ‘the project developed as a self-management model and funding was provided to the local Aboriginal communities who assumed responsibility for the employment, supervision and support of a Koori Justice Project worker’ (interim submission page 68). A recent report by the Aboriginal and Torres Strait Islander Social Justice Commissioner described how the project has been working successfully at Lake Tyers (Dodson 1996 pages 52-53).

In Victoria the rate of over-representation of Aboriginal young people fell substantially between 1993 and 1994. In 1993 Indigenous young people were 37.3 times more likely to be in a juvenile corrections centre than non-Indigenous young people. By 1994 the rate/ratio had reduced to 11.9 (Mackay 1996a). A further reduction of 46% in the total numbers of Aboriginal young people on correctional orders was reported between March 1994 and March 1995 (Dodson 1996 page 52). The lower juvenile detention figures are said to reflect a broad shift in policy direction from incarceration to diversion, as well as the success of specific initiatives such as the Koori Justice Workers Project. The Victorian Government noted that in the six areas where the projects are located ‘there has been a significant reduction in the number of Aboriginal young people placed on custodial and non-custodial juvenile justice orders’ (interim submission page 68). The Koori Justice Workers Project is an example of best practice in the area (Cunneen and McDonald 1997 pages 83-4). A Koori Advisory Committee has been established to advise on juvenile justice generally.

The reduced rate of Indigenous juvenile detention in Victoria is particularly pleasing in the context of a number of personal submissions to the Inquiry concerning incarceration in Turana detention centre during the 1980s. These included a 14 year old Aboriginal boy incarcerated for shoplifting and a profoundly deaf Aboriginal boy incarcerated when his foster placement broke down and there was no alternative accommodation available (confidential submissions 458 and 662, Victoria).
Northern Territory 
The NT Government informed the Inquiry of a long-term decrease between 1989 and 1995 in the number of juveniles sentenced to detention in the NT and the number held on remand. This reduction was attributed to the development of community based correctional programs.

The employment of Aboriginal Community Corrections Officers (ACCO) in specific communities to supervise court orders and the use of ‘culturally appropriate’ community service orders have been credited with the reduction in custodial orders. The NT Juvenile Offender Placement Program (JOPP) has been designed to minimise the use of police cells for young people. Aboriginal caregivers can provide accommodation and support to young people who might otherwise be remanded in custody.

The NT Government advised of plans for further expansion of the ACCO program and the development of a trial program of ‘community supervision’ where Indigenous organisations are paid on a fee for service basis to supervise court orders  (interim submission page 53). However, as noted below, the Inquiry is particularly concerned that legislative changes introducing mandatory imprisonment and punitive work orders are likely to undermine existing reductions in custodial levels.

Tasmania
The Tasmanian Government advised the Inquiry of proposed new legislation, currently in draft form, which aims to respond more appropriately to juvenile offending. The Youth Justice Bill and the Children and Their Families Bill differentiate between young people who offend and those in need of care and protection (Tasmanian Government submission page D-23). The Youth Justice Bill will introduce police cautions and diversionary programs including family conferencing. Some offences will be prescribed for court and not open to the use of diversionary options. Cautioning may involve the use of Aboriginal elders.

The range of non-custodial options will be increased under the proposed legislation. Community Service Order options will be expanded to include education and training and they will also be available for children under 15. Other proposed non-custodial options include fines, probation, undertakings and reparation. It is also proposed to start negotiations with Aboriginal organisations in relation to supervision of the non-custodial orders (Tasmanian Government submission Appendix 21, Cunneen and McDonald 1997 page 177). The proposed legislation has been commented upon favourably by youth advocates (National Children’s and Youth Law Centre 1996 page 4). The limitations are noted below.
The Tasmanian Government also wishes to establish an Aboriginal Youth Justice Strategy and has approached the Tasmanian Aboriginal Centre in relation to the proposal. It has suggested a number of principles and possible initiatives (Tasmanian Government submission pages D-26 to D-28).

Western Australia 
The WA Government provided little information on any programs specifically designed for Indigenous young people. Facilities such as Gwynne Lea Cottage and Warramia Farm are available for young people on bail, supervised release or community based court orders. There is also a supervised release program which enables young people to serve the final half of a detention order under supervision in the community. The Killara Youth Support Service offers a program of counselling and support for ‘at risk’ young people and those who have just commenced offending. Camp Kurli Murri (also known as the Laverton Work Camp) is an ‘alternative sentencing option’ for the courts. All of these programs are available to all young people.

The WA Government noted that funds are made available to Aboriginal communities to develop community programs for young people to discharge court orders. The Kanpa facility near Warburton takes Indigenous young people while on bail or subject to a court order. An Aboriginal Family Support Program is being piloted in Geraldton and Perth to support elders to provide role models and support for young offenders (WA Government supplementary information).

Queensland 
The Queensland Government drew attention to a number of programs designed to reduce the level of Indigenous over-representation. The Youth and Community Combined Action (YACCA) strategy is a preventive program. Four Indigenous-specific projects are funded under this program in Aurukun, Palm Island, Murgon/Cherbourg and Brisbane (interim submission page 92). 

A number of other projects have been established in areas with high rates of reported juvenile offences and high rates of detention orders for Indigenous young people. These include a ‘Crime Clean-up Team’ in Inala and a young offender project in Ipswich (Teen Care Indigenous Youth Service) which provides culturally-appropriate supervision and other programs. Aboriginal Outreach Projects have been established at Cairns and Murgon to assist in the supervision of orders. Some Indigenous people have been employed as Adolescent Resource Workers to work with ‘high risk’ or ‘high need’ Indigenous children (Queensland Government interim submission pages 94-95). Taken together, these programs are said to reflect the Government’s commitment to self-determination in the area of juvenile justice.

The Conditional Bail Program offers courts alternatives to remanding children in custody. The program focuses on children who would otherwise be unlikely to be granted bail or to comply with bail conditions. Programs can be individually designed. They may involve existing projects or engaging a community organisation on a fee for service basis. Slightly more than half of the children referred to the program have been Indigenous. The Queensland Government credits the program with a reduction in the number of Aboriginal and Torres Strait Islander children remanded in custody (interim submission page 93). However, Indigenous young people are still massively over-represented among those detained in police watchhouses in Queensland (Queensland Government final submission page 59).

One of the most promising changes in dealing with young offenders in Queensland originated with the Yalga Binbi Institute and the Queensland Corrective Services Commission (QCSC). The Yalga Binbi Institute reported on problems facing Indigenous communities in maintaining law and order at the local level. To address the issue the Institute recommended a community development approach whereby communities, clans and family groups identify what roles they could play in changing patterns of criminal behaviour. The development of Aboriginal law was strongly supported as part of developing community justice mechanisms. Issues of law and order were to be addressed in a way that ‘the community understands is right and in accordance with its own customs, laws and understandings about justice’ (Adams and Bimrose 1995 page 37).

Community justice groups have developed in Kowanyama, Palm Island and Pormpuraaw. These groups are complex reflections of the communities they represent. For example, the Kowanyama Justice Council has eighteen members (nine men and nine women) representing the Kokoberra, Kokomnjena and Kunjen linguistic groups in the community. It has been argued that the success of Kowanyama Justice Council is reflected in dramatic decreases in arrests for offences and a drop in the number of children appearing before the local Children’s Court. Similar successes have been claimed for the Palm Island Elders Group (Adams and Bimrose 1995 pages 40-43).

The use of Aboriginal Law is central to the Elders emphasis on making kids, teenagers and their families accountable for their actions. Elders ask kids involved in a dispute and their families to front up to a meeting held in a local community hall ‘before his or her own people’. Each party is given a chance to explain their version of the incident. The Elders give their view of how the child or the group of kids has behaved and then they ask the kids and families to respond. The group considers whether the child’s actions are as a direct result of wider issues such as overcrowding, neglect or other conflicts at home and may recommend referrals and increased support to the family. Sitting down and talking with the child’s parents and counselling is a vital part of the Elder’s work (Dodson 1996 page 56).

The community justice groups have been commented upon favourably in a recent report to ATSIC (Cunneen and McDonald 1997 pages 72-76). However, there is also real concern in Queensland that the funding for local justice initiatives is not being handled adequately by the Office of Aboriginal and Torres Strait Islander Affairs and that there are unnecessary restrictions.

Any initiatives developed will need to fall within the confines of the existing State systems. In particular, it should be noted that justice groups have no statutory authority … Consequently, justice groups have no direct responsibility under the Program for punishing misbehaviour or criminal offenders.

Responses to law and order problems suggested by justice groups are essentially a means to bring forward Aboriginal and Torres Strait Islander communities’ views and advice which may be incorporated into State systems, where appropriate (Queensland Office of Aboriginal and Torres Strait Islander Affairs 1996b page 13).

The appropriate process is one of negotiation between Indigenous people and government authorities. This approach, however, leaves little room for negotiation and has been described as antithetical to the principle of self-determination. The Queensland Government argued that the Local Justice Initiatives Program ‘is an expansion of the concept originally piloted by the QCSC at Palm Island’ and ‘provides significant potential for communities to develop justice initiatives for young people’ (interim submission page 100). However, there are serious doubts raised by the imposed restrictions. The restrictions also apparently contradict the Government’s position on self-determination. 

ACT
The ACT Government provided minimal information to the Inquiry on programs specific to Indigenous young people. It noted that ‘where possible young Aboriginal people on Community Service Work Orders are placed within the local Aboriginal community’ and that as part of individual case plans Indigenous youth in detention can participate in ‘Aboriginal cultural, health and education programs’ (interim submission page 25).

Commonwealth
The Commonwealth Government’s submission to the Inquiry did not address the issue of what the role of the Commonwealth might be in preventing contemporary separations through juvenile justice intervention. It did, however, refer to a number of programs which provide generalist or Indigenous-specific services to young people and their families covering areas such as employment, education, health and family services.

Causes of separation
All States and Territories have programs and policies that are specific to Indigenous children and young people. Nonetheless the over-representation of Indigenous young people remains a critical issue. There are a number of specific factors relevant to this including policing issues, the problems associated with the nature and use of non-Indigenous diversionary schemes and a range of sentencing issues.

Policing
Submissions to the Inquiry raised many issues concerning police responses to Indigenous young people including Aboriginal/police relations, police powers, the utilisation of police discretion and the regulation of police behaviour.

The policing of Indigenous young people occurs within the broader context of Aboriginal/police relations. Those relations are themselves structured by both the history of British colonisation of Australia and the colonial relations forged with Indigenous peoples, as well as the nature of contemporary race relations and the extent of racism against Indigenous people within Australian society.

Racism is endemic in Western Australia and is experienced in every area of society. However, the working conditions of police and the awesome power they wield can result in racism being reproduced in a particularly heightened and intensified form. Aboriginal juveniles are often singled out for police attention (ALSWA submission 127 page 364).

Several submissions to the Inquiry stated that over-policing is a major problem in many Aboriginal communities (for example, Western Aboriginal Legal Service (Broken Hill) submission 755, ALSWA submission 127 pages 247-251). The ALSWA reiterated the need for protocols to regulate the interaction between police and Aboriginal communities. Protocols should address over-policing, policing needs in remote communities, interaction between police and community wardens (in WA), procedures for negotiation and involvement in decisions relating to policing priorities and methods.

Major recommendations of the Royal Commission into Aboriginal Deaths in Custody also addressed the issue of over-policing and the establishment of protocols (Recommendations 88, 214, 215 and 223).These recommendations have been poorly implemented (Cunneen and McDonald 1997 pages 94-97, 100-102).

Most Indigenous young people do not believe that Aboriginal/police relations are improving. A 1994 survey by the Australian Bureau of Statistics showed that some 40% of Indigenous young people thought Aboriginal/police relations were much the same as five years ago, 18% saw an improvement and 20% thought relations were worse (1996 page 24).

However, there are also localised success stories. The reduction in juvenile offending in Kowanyama in Queensland is due in part to the partnership between the local police sergeant and the Kowanyama Justice Council (Adams and Bimrose 1995 page 42). Cooperative approaches between police and Aboriginal communities in the development of night patrols can improve Aboriginal/police relations, reduce police custody levels and lower juvenile offending levels (Dodson 1996 pages 60-62).

Policing public order
A range of legislative powers enables police to intervene against Indigenous young people in public places. These can include specific provisions within public order legislation, local government ordinances and laws and, in some cases, the use of welfare provisions which provide police with certain powers over young people in public places. Although the specific laws are particular to certain jurisdictions or, in some cases, local areas, the issue is a national one because of the common experience of Indigenous young people.

Arrests for public order offences still constitute a significant reason for the involvement of Indigenous young people in the juvenile justice system. The Western Aboriginal Legal Service (Broken Hill) drew attention to the disproportionate use of public order offences against Indigenous people in western NSW (submission 755). In Victoria, the most common single category of crime for which Indigenous young people were apprehended was public order offences – nearly 20% of all charges against Indigenous young people in 1993-94 (Mackay 1996b page 14). There was also a 43% increase in this category for Indigenous young people between 1993-94 and 1994-95 (Mackay 1996a page 7). In other jurisdictions the figures are broadly comparable. In NSW around 16% of police cautions and courts appearances for Indigenous young people involved public order offences (Luke and Cunneen 1995 page 11). Evidence from WA indicates that the proportion of Aboriginal juveniles charged with good order offences has increased since 1990. ‘This result gives some support to the proposition that the police are using good order offences to clear Aboriginal youth from the streets’ (Crime Research Centre 1995 page 5).

Section 138B of the Child Welfare Act 1947 (WA) is an example of a welfare provision used in public order policing. This section allows police to ‘clean the streets’ by using legislation originally aimed at children in ‘moral danger’. There have been numerous complaints about the way this legislation has been used as a form of ‘moral policing’ which disproportionately impacts on Aboriginal children and young people (ALSWA submission 127 page 342). It has also been noted that, instead of being taken ‘to their place of residence’ as required under the legislation, children have ‘illegally been put in paddy wagons and taken to the police station for their parents to collect’ (Dodson 1995 page 23).
Beresford and Omaji have noted that the juvenile justice legislation ‘has done little to discourage the tendency to lock up children suspected of having a social problem’ in WA (1996 page 115). The same can be said of other jurisdictions. In Queensland the government has encouraged police to use existing ‘care and control’ powers under the Children’s Services Act. These sections of the legislation provide for intervention and the use of custody for young people who have not committed a criminal offence but are deemed to be ‘at risk’ (Cunneen and McDonald 1997 page 173).

The Children (Parental Responsibility) Act 1994 (NSW) give police power to remove children and young people from public places. The Act empowers police to demand the name, age and address of a young person and remove young people under the age of 16 years from public places if they are unsupervised and the officer believes that there is a likelihood of a crime being committed or that the young person is at risk. The young person can be taken home or to a ‘place of refuge’ for up to 24 hours. A young person commits an offence if he or she leaves the ‘place of refuge’. This power operates only in two areas within the State. It was reviewed in 1996 and its repeal has been recommended. The NSW Government is also proposing a Street Safety Bill to give police the power to break up groups of three or more young people congregated together where the officer has a reasonable suspicion that they are likely to intimidate or harass others.

Local government by-laws and local ordinances can create more punitive approaches to the policing of Indigenous young people. Cunneen and McDonald (1997 page 170) have discussed how the local laws that cover Southbank Parklands in Brisbane are being used to create an ‘Aboriginal free’ zone. They note that Aboriginal youth are being harassed in Southbank and the Brisbane Mall areas by being required to show identification and provide their names. The effect has been to drive Indigenous young people away from the areas. In December 1995 the Southbank Corporation Act was amended to give police officers and security guards the power to stop people, ask for their name and address and request them to leave the area for 24 hours if they are regarded as causing a nuisance. There are also bans available for up to 10 days if the person disobeys a direction (Murray 1996).

There have been real inequities on the part of local governments in the standards of service provision and infrastructure between Aboriginal and non-Aboriginal communities (ALSWA submission 127 page 204). Failure to provide services for young people and families is likely to increase the risk of intervention by regulatory agencies of welfare and juvenile justice.

The police power to ask a young person for his or her name and address is also used inappropriately. The Inquiry was told that section 50 of the Police Act 1892 (WA) which provides police with this power in WA is abused and should be repealed (ALSWA submission 127 page 367). Certainly, many Indigenous young people believe that they are stopped and questioned by police without adequate reason (Howard 1996). In South Australia police harassment of Indigenous young people was raised in community meetings with the Inquiry (evidence 308 page 1). The inquiry on children and the legal process being conducted jointly by the Human Rights and Equal Opportunity Commission and the Australian Law Reform Commission has been told of hundreds of young people having their names and addresses taken by police on typical weekends in Queensland and WA. That inquiry will report further on this issue.

Police discretions
When a young person is suspected of committing an offence, a police officer has a range of options available on how to proceed. These include a warning and no further action, a formal caution, and charging the young person by either issuing a summons4 to appear in court on a certain date or by arresting the young person, conveying him or her to a police station, charging with an offence and determining bail.

The officer has a common law discretion to warn the young person and take no further action, except perhaps to record the details of the suspected offence and offender in his or her notebook. These informal warnings are sometimes referred to as ‘warnings’, ‘informal cautions’ or ‘cautions on the run’ and are different from a formal police caution.

All Australian States and Territories have some form of official police cautioning system. In some States (SA, WA and Queensland) police cautioning is provided for in legislation. In other States such as NSW, cautioning is regulated by police guidelines. In Tasmania the use of police cautions has been piloted and will be provided for in the new legislation. The available evidence overwhelmingly confirms that Indigenous young people do not receive the benefits of cautioning to the same extent as non-Indigenous young people. Unfortunately, most police services do not provide routine data comparing Indigenous and non-Indigenous cautioning rates. This lack of information severely hinders policy evaluation.

Recent interviews with Aboriginal Legal Service solicitors in the NT indicated a relatively infrequent use of cautions by police for Aboriginal young people. Solicitors were of the view that the system was generally harsh for Indigenous young people who were treated and processed much the same as adults. Police cautions are only available for first offenders, a factor which defeats the purpose of diversion and is likely to discriminate significantly against Indigenous young people (Cunneen and McDonald 1997 page 181).

Aboriginal youth are less likely to be cautioned than non-Aboriginal youth in WA (ALSWA submission 127 page 334 referring to Crime Research Centre data). Aboriginal youth account for 12.3% of cautions (Crime Research Centre 1995 page 6). Of all Indigenous youth who are formally processed by the police around one-third receive a police caution and the remaining two-thirds are charged with an offence. 
Conversely, two-thirds of non-Indigenous young people are cautioned and the remaining one-third are charged (Crime Research Centre 1995 page 18). The cautioning system in WA ‘as it is employed at present, further disadvantages [Aboriginal juveniles] and further increases the disproportionately negative treatment they receive under the juvenile justice system’ (submission 127 page 369). Furthermore the Inquiry was told that police are attaching conditions to cautions although there is no provision to do so in the legislation (submission 127 page 369). Contrary to Recommendation 240 of the Royal Commission into Aboriginal Deaths in Custody, police cautions are issued in WA without the involvement of parents (submission 127 page 369).

Factors which Western Australian police are required to take into account when deciding whether to caution include offending history and seriousness of the offence. They also include ‘extra-judicial’ factors such as family background, school attendance and employment. These are precisely the types of factors likely to cause discrimination against Indigenous youth (Gale et al 1990 pages 56-58).

In Victoria police instructions indicate that the preferred order of dealing with juveniles is ‘no further action’, a caution under the police cautioning program, proceed by way of summons, arrest, charge and consider bail, and finally arrest, charge and remand in custody as a last resort. Arrest should only take place in ‘exceptional circumstances’ and must be authorised by an officer of at least the rank of senior sergeant. However, the Victorian Government advised the Inquiry that in Victoria in 1995-96 Indigenous young people were significantly less likely to receive an official police caution than non-Indigenous young people (11.3% compared to 35.6%). Indigenous young people apprehended by police were twice as likely to be proceeded against by way of arrest (46.6%) compared to non-Indigenous youth (23.5%). As a result, while slightly more than one-third of non-Indigenous youth apprehended by police avoid appearing in court (and the likelihood of a conviction and criminal record), little more than one in ten Indigenous young people are similarly treated. Put another way, ‘the percentage of Aboriginal offenders dealt with through the police caution program is one-third the rate of non-Aboriginal offenders’ (Victorian Government final submission page 121; see also Mackay 1996a pages 9-10).

The Inquiry was told that in NSW,

… there is concern about the differential use of police cautions particularly for Aboriginal juvenile offenders. Measures are being introduced by the Police Service to encourage greater use of police cautions in dealing with young people generally and in particular with Aboriginal young people (NSW Government submission page 77). 

However, despite recognising the need for change, the NSW Government simply noted that ‘police use of discretion (arrest, bail, caution, etc) is currently undergoing detailed review’ (submission page 77). In NSW an Aboriginal young person is less likely to receive a caution than a non-Aboriginal young person on a similar charge with a similar criminal history. In other words a non-Indigenous young person is treated more favourably than an Indigenous youth in similar circumstances (Luke and Cunneen 1995 page 29). 

In Queensland the perception of Indigenous organisations such as the Aboriginal Justice Advisory Council and various Aboriginal Legal Services was that there was discriminatory intervention by police against Indigenous young people in the first instance and, arising out of that intervention, Indigenous young people were less likely to be cautioned and more likely to be charged than non-Indigenous youth. Police cautions are not issued to Indigenous young people in situations where public visibility and public order are seen as issues (Cunneen and McDonald 1997 page 181).

In South Australia, Aboriginal young people are half as likely to receive a police caution as non-Aboriginal youth: 17% of Indigenous youth matters end in a police caution compared to 36% of non-Indigenous matters (Wundersitz 1996 page xx). The situation is particularly noteworthy because SA has only recently introduced official police cautions as part of a new juvenile justice strategy. The failure of Aboriginal young people to receive the benefits of police diversion was a feature of the old South Australian juvenile justice system. The problem has been reproduced although the legislation and particular programs have changed (Gale et al 1990, Wundersitz 1996 page xx).

Currently there is a general trend to provide in legislation for Indigenous elders to issue cautions in place of police officers. This is proposed in section 12 of the new Tasmanian Youth Justice Bill and in NSW government proposals for new legislation (NSW Attorney-General’s Department 1996 page x). Section 14 of the Queensland Juvenile Justice Act 1992 provides for cautioning by Aboriginal and Torres Strait Islander elders instead of police at the request of an authorised police officer. 

The situation in Queensland shows the need not simply to change legislation but also to provide greater control over police decision-making and systems for continuing monitoring. According to the Queensland Government ‘the use of respected persons to administer cautions allows for cautions to be more meaningful to Aboriginal and Torres Strait Islander children’ (interim submission page 90). However, the available data on the use of cautions is ‘extremely unreliable’ and cannot distinguish between Indigenous and non-Indigenous young people (Queensland Government final submission page 43). Furthermore, ‘information is not available at this time’ as to the extent of use of respected elders in the cautioning process instead of police, although ‘a survey could be conducted … providing appropriate funding could be obtained’ (Queensland Government final submission page 61). The Government does not know the extent of compliance with, or effectiveness of, its legislative initiatives in this area.
Two separate reports show that Queensland police are not using Indigenous elders to administer cautions (Aboriginal and Torres Strait Islander Overview Committee 1996 page 67, Cunneen and McDonald 1997 page 181). This is contrary to the intent of the legislation and breaches Recommendation 234 of the Royal Commission into Aboriginal Deaths in Custody which requires Indigenous community involvement. It is also contrary to the specific wishes of Indigenous people themselves who desire to have greater involvement (Cunneen and McDonald 1997 page 181). The Queensland example shows that without control over police discretion Indigenous people are unlikely to be given the opportunity to caution their young people, despite legislative provisions.

Arrest and charges
The Royal Commission into Aboriginal Deaths in Custody recommended the review of  legislation and instructions to ensure that young people are not proceeded against by way of arrest unless such an action is necessary. The test should be more stringent than with respect to the arrest of adults (Recommendation 239). The recommendation is consistent with the Convention on the Rights of the Child which requires that arrest should be used only as a last resort. In some Australian jurisdictions there are legislative directions preferring the use of a summons or court attendance notice rather than arrest.

Indigenous young people are less likely to receive less intrusive interventions such as police cautions or referrals to diversionary options. They are more likely to be proceeded against by way of arrest rather than the use of a summons or court attendance notice. Arrest is a punishment in itself and may lead to higher levels of custody because Children’s Courts are more likely to impose custodial sentences on young people brought before them by way of arrest than on the basis of a summons (Gale et al 1990). Thus proceeding by way of arrest doubles the possible avenues to custody, either by way of bail refusal or by way of custodial sentence.

Indigenous organisations see arrest as the police’s preferred option for dealing with Indigenous young people in most jurisdictions (Cunneen and McDonald 1997 pages 178-9). Available data strongly support the view of Indigenous organisations. In both NSW and Queensland approximately two-thirds of matters before the Children’s Court are brought by way of arrest and one-third by way of summons (Luke and Cunneen 1995, Criminal Justice Commission 1995).

Even in jurisdictions where summons are used more frequently Indigenous youth do not benefit from the use to the same extent as non-Indigenous youth. In the NT in 1994-95 Indigenous young people comprised 70% of young people proceeded against by way of arrest and 53% of young people proceeded against by way of summons (NT Government Exhibit 38). In SA Indigenous young people are far more likely to be brought into the system by way of arrest than non-Indigenous youth (41% of Indigenous youth enter the system by way of arrest compared to 25% of non-Indigenous youth) (Wundersitz 1996 page 204). 
In Victoria non-Aboriginal young people are more often brought before the Children’s Court by way of summons than arrest. However, for Aboriginal young people arrest is still the favoured police option (Victorian Government final submission page 121). Between 1993-94 and 1994-95 there was a 46.4% increase in Indigenous youth formally processed by the Victorian police, compared to a 4.6% increase for non-Indigenous young people in the same period (Mackay 1996a page 6).5 Improving police responses to Indigenous young people is fundamental to lessening the number of separations through the use of custody. In Victoria ‘the cycle of arrest of Aboriginal juveniles has not been broken’ (Mackay 1996a page 4). Relatively effective initiatives such as the Koori Justice Project which has successfully diverted more Aboriginal juveniles from detention centres will be undermined if arrest rates are not reduced.

As adults, the criminal justice system is not as likely to impose non-custodial sentences on repeat offenders. Whilst the current generation of Aboriginal juveniles are being processed by police as offenders at incredibly high rates, the full effects of this phenomenon will not take effect for another couple of years when many of these juveniles reach adulthood … [The] statistics paint a grim picture of what is likely to be an explosion in the number of young Aboriginals entering the adult prison system in the next few years (Mackay 1996a pages 4 and 14).

As a result of legislative and policy changes in WA there has been a reduction in the number of charges and arrests for young people. However, the rate of decrease for Aboriginal young people has been significantly lower than for non-Aboriginal youth (ALSWA submission 127 page 333).

Other evidence shows that many Indigenous young people are arrested during their adolescent years. According to the 1994 survey by the Australian Bureau of Statistics some 25% of Indigenous youth reported being arrested during the previous five years. Of this group, 60% stated that they had been arrested more than once. Some 14% of all Indigenous youth surveyed stated that they had been harassed (‘hassled’) by police (1996 page 22).

The ABS survey also showed important differences on the basis of both sex and geographical location. Indigenous male youth reported being arrested (38%) and being hassled by police (21%) at roughly three times the rate of females reporting arrest (12%) and being hassled (7%). Indigenous youth in capital cities also reported greater arrests and hassles with police than Indigenous young people in other urban and rural areas (1996 page 22). There were also differences between jurisdictions as to the proportion of Indigenous youth reporting being arrested or hassled by police. Indigenous youth in Victoria reported both the highest level of being hassled by police (36% of Indigenous young people) and being arrested (34% of Indigenous young people). WA and SA also had high proportions of Indigenous young people reporting arrests (both 33%) (1996 page 26).

Finally, police discretion also affects the number and nature of charges laid against a young person. ‘Over-policing’ by way of unnecessary and trivial charges has long been an issue in Aboriginal/police relations. The Royal Commission into Aboriginal Deaths in Custody noted that ‘young Aboriginals are unnecessarily or deliberately made the subject of trivial or multiple charges, with the result that the appearance of a serious criminal record is built up at an early age’ (National Report 1991 Volume 2 page 275; see also International Commission of Jurists 1990, Howard 1996). 

Notification and interrogation
The special vulnerability of both young people and Indigenous people during police interrogation has been noted for many years. These vulnerabilities may be amplified when the person is both young and Indigenous. Guidelines for the conduct of NT police when interrogating Aboriginal people were originally spelt out by the NT Supreme Court as the Anunga Rules (1976). They have been adopted to varying degrees in police instructions and guidelines in other jurisdictions. All Australian jurisdictions require the presence of an adult when juvenile suspects are being interrogated. In some jurisdictions the requirement exists in legislation, in others it takes the form of police guidelines (Warner 1994 pages 32-3). Courts retain the discretion to admit evidence obtained in the absence of an adult. In most jurisdictions notification of a solicitor is provided for only in police guidelines and is only required when requested by the young person.

The Royal Commission into Aboriginal Deaths in Custody made a number of recommendations requiring police to advise Aboriginal Legal Services and parents when young people are taken to a police station for interrogation or after arrest (Recommendations 243, 244 and 245). No interrogation should take place without the presence of a parent, responsible person or officer from an organisation with responsibility for Aboriginal juveniles. Notification is seen as a protection against the abuse of custody and against pressure being applied to a young person to make false admissions (Cunneen and McDonald 1997 page 185). The purpose of these recommendations is to protect the rights of young people and to prevent miscarriages of justice and unlawful detentions by police. Their main failing is that they do not stipulate that compliance be assured through the use of legislation, despite well documented failures of compliance with police guidelines (Warner 1994 pages 35-8).

The Inquiry was told that some police are ‘extremely reluctant’ to contact Aboriginal Legal Services prior to a person being questioned and charged (ALSWA submission page 244). Other issues raised by the ALSWA included refusal of access to a telephone when in custody, Aboriginal people being unclear as to what they were being charged with and an unhelpful approach by some police in providing police facts to the defendant’s legal representative (submission 127 page 246). The ALSWA recommended the amendment of section 19 of the Young Offenders Act 1994 (WA) to include a number of rights in relation to telephone calls, legal representation and the presence of an independent third person (submission 127 pages 347-8). The ALSWA advised the inquiry that the Police Orders applicable to the questioning of juveniles were not adhered to in practice (submission 127 page 367). Significant numbers of young people are interviewed without being accompanied by an independent adult (Cunneen 1990, Warner 1994 pages 35-6, Howard 1996).

In other jurisdictions there are similar deficiencies. In Darwin NAALAS maintained that it was not always notified when an Aboriginal child was in police custody. The NT Police response to the Royal Commission recommendation was one of only ‘qualified support’ because of difficulties that may be encountered with notification. There is nothing in the NT juvenile justice legislation to govern police interrogation and there is no right to contact a solicitor. In northern Queensland there are still cases where young people are locked up overnight in police watchhouses without Aboriginal agencies being notified until next day. Parents were not advised regularly. It appeared to Yuddika Aboriginal Child Care Agency and Njiku Jowan Aboriginal Legal Service that there is no set procedure or protocol for notification of Indigenous agencies (Cunneen and McDonald 1997 page 186).

Police custody and bail
Most States and Territories have programs designed to minimise the use of police custody for Indigenous young people. These programs usually involve some form of advocacy and placement service to guarantee access to bail. However, the detention of Indigenous children and young people in police watchhouses as a result of being refused bail by police or being remanded in custody by an order of the court remains a significant problem throughout Australia. The national data on the use of police custody (which included detentions for drunkenness, as well as bail refusal) are presented above. Detention in police custody, except in exceptional circumstances, is contrary to recommendations of the Royal Commission into Aboriginal Deaths in Custody and the Convention on the Rights of the Child. In many jurisdictions laws have created greater impediments to the granting of bail to Indigenous young people than when the Royal Commission first reported (Aboriginal and Torres Strait Islander Social Justice Commissioner 1996 page 199).

In South Australia the Inquiry was informed that the two bail houses operated by the ACCA were insufficient and required more secure funding. The SA ACCA recommended that police be required to use Indigenous bail houses as an alternative to secure care at all times (submission 347 pages 35-6).

The Victorian Aboriginal Legal Service told the Inquiry of occasions when juveniles are held in police cells, including an instance of a young person being held for one week in a Mildura police station. In Tasmania juveniles are held in police cells in Hobart because there is no alternative within reasonable distance. In central Australia, Aboriginal organisations such as the Central Australian Aboriginal Legal Aid Service and Tangentyere Council have reported cases where young people are held inappropriately in police custody because they are unable to raise bail even for relatively minor offences.
In Cairns Indigenous young people are kept in the watchhouse because of a lack of alternative facilities. At times, no arrangements are made for the presence of a parent or visitor during the period in custody (Cunneen and McDonald 1997 page 183). Tharpuntoo Aboriginal Legal Service stated ‘one of the problems is that there is not available to Aboriginal juveniles on Cape York the same options [to avoid the use of police custody] as are available elsewhere. For example there is no supervised bail program on Cape York Peninsula for young people’ (quoted by Cunneen and McDonald 1997 page 173). Most Aboriginal young people who are arrested in the Cape region are bailed back to their community. Those who are refused bail are taken to Cairns then Townsville. This results in a separation of hundreds of kilometres from family and community.

Data supplied to the Inquiry by the Queensland Government indicate that in every year since 1992 over one-half and sometimes more than two-thirds of young people detained overnight in police watchhouses were Indigenous young people.6 The major reason was that police refused bail. Indigenous young people, particularly those transported from remote communities, could wait between three and five days in the police watchhouse to be transported to a detention centre (Cunneen and McDonald 1997 page 183-4). This is contrary to a protocol between the Department of Families, Youth and Community Care and the Police Service relating to custody of young people in watchhouses. A young person should only be held in a watchhouse overnight if the young person will appear in court the next day and it is impractical to transport the young person to a nominated place immediately. A young person may be held longer than overnight only if there are exceptional circumstances preventing transportation or bringing the young person before the court (Department of Family Services and Aboriginal and Islander Affairs 1993 section 10-2).

There is no reason to believe that the situation in Queensland is unusual – except that it actually has available data on the number of Indigenous young people in police watchhouses. Most jurisdictions are unable to supply regular data on police bail refusals for Indigenous young people.7 Information from the 1995 Police Custody Survey shows the extent nationally of Indigenous young people in police cells.

As noted previously, the Australian Government made reservations to articles of UN treaties relating to separation of juveniles from adults in police and prison custody. According to the National Aboriginal and Islander Legal Service Secretariat, this reflects the lack of commitment to fully implementing the recommendations of the Royal Commission into Aboriginal Deaths in Custody (Cunneen and McDonald 1997 page 182). It has been argued that,

… non-compliance with the requirements in the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child should be limited to cases genuinely relating to the best interests of the juveniles or geographic necessity (Aboriginal and Torres Strait Islander Social Justice Commissioner 1996 page 207).
The available evidence shows the widespread and disproportionate use of police custody for Indigenous juveniles. The lack of alternative facilities may well explain this in part. However, the lack of facilities is itself indicative of governmental failure to address the issues of adequate resourcing, particularly where there are already limited but innovative alternative bail programs which involve Indigenous communities.

Diversionary schemes
In general terms, diversionary schemes are mechanisms and programs to divert young people away from the formal processes of the Children’s Court. The most simple form of diversion is the use of warnings and cautions by police such as those referred to above. Diversionary schemes may involve some type of community involvement in the design and administration of the scheme, although this is by no means a necessary feature. Indeed there has been a general lack of Indigenous consultation, negotiation and control over those schemes. 

 ‘Diversionary’ programmes are frequently rigid in their structure. Contrary to Recommendation 62 [of the Royal Commission into Aboriginal Deaths in Custody], they are not designed in close consultation with Indigenous communities or adapted to local circumstances. They are packaged in remote ‘policy’ units and driven or posted into communities.

We see diversion delivered to us in a package because ‘they’ know what is best for ‘us’. The paternalism of such diversion reflects the earlier policies of ‘care and protection’ and ‘assimilation’ that permitted the removal of Indigenous children from their families up until the 1970s (Dodson 1996 page 31).

The problem has been referred to as a ‘one size fits all’ solution to Indigenous issues. These simple models of dispute resolution fail to understand the complex reality of Indigenous communities and ignore fundamentally the principle of self-determination (Dodson 1996 page 61, Canadian Royal Commission on Aboriginal Peoples 1996 page 219).

In recent years ‘family group conferencing’ has become an increasingly favoured option for diversion. The conference brings together the young offender and support persons, the victim and supporters and police and youth workers with the aim that the young offender will develop a sense of responsibility for the offence. The objective is to reach a mutually agreeable resolution for the harm that has been caused by the offence and to reintegrate the offender into the community. Various forms of ‘conferencing’ have been established in most jurisdictions. By and large, they adapt and modify parts of the New Zealand system of family group conferences.

The New Zealand system derives from extensive consultation with Maori communities and is reflective of Maori traditions.8 The Australian adaptations have been referred to as ‘hybrids’ with ‘the real spirit of the diversionary process completely lost in all but a few cases’ (Dodson 1996 page 42). Other grounds of criticism include,
•	Conferencing suffers from the ‘one size fits all’ approach to Aboriginal justice – a model is imposed on Aboriginal communities to which they are expected to adhere.
•	The new systems lack basic commitments to negotiation with Indigenous communities and show no understanding of the principle of self-determination.
•	Conferencing models do not respect important cultural differences.
•	In SA, WA and the pilot projects in the NT, Tasmania, NSW, ACT and Queensland, police control some or all of the following: the key decision-making of who accesses conferences, how the conferences are operated and a final veto over the agreement that might be reached.
•	The application of the conferencing model can lead to further blaming and stigmatisation of Indigenous young people and their families for offending behaviour.

The adaptation of family group conferencing has been significantly compromised in many parts of Australia. The trial conferencing project in Alice Springs occurred without Aboriginal community consultation. Aboriginal organisations considered that Aboriginal young people were unlikely to benefit from the program. Repeat offenders were not being considered for conferencing, which effectively excluded most Aboriginal young people (Cunneen and McDonald 1997 page 171). In South Australia the Pitjantjatjara Council noted little change as a result of new juvenile justice legislation which introduced conferencing. There was no knowledge of any conferencing panels in the Pitjantjatjara lands. Independent evaluation of barriers to the use of alternatives in SA noted in relation to the Anangu Pitjantjatjara Lands that,

The local Youth Justice Co-ordinator has insufficient resources to organise Family Conferences. The most time consuming and culturally difficult task involves the identification of family members who are appropriate to participate in the conference and then subsequently arranging for them to come together for a Conference. Very few victims of offences are involved in family conferences resulting in a central feature of the scheme being omitted from the process (Planning Advisory Services 1995 page 27).

There has been inadequate consultation with Indigenous communities during the development of the model and, where consultation has occurred, there has been insufficient regard for Indigenous views (Dodson 1996 page 33).

It has been argued that panels and family conferencing can be successful with adequate cultural sensitivity and Aboriginal community involvement ‘but schemes which increase alienation and which are imposed by police on families of the offender and the victim will not succeed’ (Aboriginal and Torres Strait Islander Social Justice Commissioner 1996 page 199). ATSIC supports greater evaluation of the potential benefits of the scheme to Indigenous young people (submission 684 page 42). The lack of commitment to Indigenous involvement and fundamental change marks an enormous divergence between the New Zealand model of conferencing and what has occurred in Australia. In New Zealand the change, 

… has both created new structures and has shifted the balance of forces … if we are to capture what is, in relation to Aboriginal peoples, its most innovative characteristic, it must be read as an empowering and de-colonising process which has lead to the recovery of lost authorities, social relationships and ceremonies while reducing the extent of welfare and penological colonialism (Blagg forthcoming page 5).

In WA Aboriginal organisations have argued that lack of empowerment for Aboriginal families or communities inhibits the effectiveness of diversionary options which are offered. ‘[The] current systemic discrimination against Aboriginal youth in the operation of the diversionary processes will be perpetuated by the new legislation’ (Ayres 1994 page 20). Observations of conferencing in SA have suggested that ‘the most striking aspect of the model developed for Indigenous people are the problems encountered with cultural difference’ which include inadequate understanding of Indigenous social structure, language barriers, different communication patterns and different spatial and temporal patterns which derive from cultural obligations (Dodson 1996 pages 46-47). It is perhaps not surprising that Indigenous young people were less likely to experience a ‘successful’ conference than non-Indigenous youth (Wundersitz 1996 page 204).

The adaptation of the model from New Zealand rested on the spurious assumption that there were homologous social structures among various Indigenous cultures – in other words that Indigenous people all over the world are the same (Blagg forthcoming). There is nothing in the current or proposed Australian conferencing schemes which might allow for the model to be adapted and developed by Indigenous communities.9 Providing as a ‘guiding principle’ of conferencing that they should be ‘culturally appropriate’ is tokenistic if there is no framework provided for significant Indigenous contribution to or control over the form and substance of conferences.10 

The South Australian Government noted that the Department of Family and Community Services ‘is committed to a model of conferencing with Aboriginal people that will facilitate the sharing of responsibility for planning, decision making, care and action’ (interim submission page 44). However, there is no statutory obligation to consider cultural issues,11 the model itself is assumed to be appropriate and the problem to be resolved is essentially one of overcoming ‘logistic’ problems such as distance and developing the ‘processes’ which will ensure the involvement of Aboriginal families.

The problem of police control over conferencing is widespread. Blagg and Wilkie (1995) suggested that Aboriginal organisations were sceptical that police could be viewed as independent arbiters in the process and that power and control over diversionary options were being extended without any screening or regulatory processes (Blagg forthcoming pages 18-19). In WA the Juvenile Justice Teams were intended to mirror the New Zealand Family Group Conferences. However, the composition of a Team may include only representatives of the police and the Ministry of Justice, a responsible adult and the young person. Referral to a Team can be made by the police or the Children’s Court. As a result,

[The] Juvenile Justice Team model is a half-baked and inadequate version of the New Zealand model that will not live up to its potential (ALSWA submission 127 page 348).

These Teams are inadequate because they have restricted membership, the conferences lack specific time frames, they are restricted to minor non-scheduled offences by first offenders, there are no legal safeguards for the young person and the police have control over who is referred to the teams (ALSWA submission 127 page 348, Beresford and Omaji 1996 pages 103-5).

Indigenous young people are not being referred as frequently to Juvenile Justice Teams for conferences as non-Indigenous youth. ‘Only a small percentage of Aboriginal young people are being referred to the Teams and … this percentage is gradually decreasing’ (WA Government submission Exhibit 19 Appendix 4; see also Crime Research Centre 1995 page 6).

In NSW the Attorney-General’s Department has recommended that the pilot Community Youth Conferencing scheme be abandoned partly because of attitudinal problems on the part of police and lack of referrals of Indigenous youth to the conferences. A new system is proposed called ‘accountability conferences’. It is proposed that referrals could be made by the court and the Director of Public Prosecutions as well as by the police. It is also proposed that there should be a presumption in favour of conferencing for a greater number of offences (NSW Attorney-General’s Department 1996 pages xii-xiv). 

In Tasmania the draft Youth Justice Bill proposes that referrals be made by the court. 

In SA Indigenous young people are less likely to be referred by police to the conferences and more likely to be referred to court. Indigenous young people comprise 12% of referrals to conferences but 19% of referrals to court. In addition Indigenous young people (36%) are almost twice as likely as non-Indigenous youth (19%) to be referred straight to court without the benefit of either a conference or a police caution (Dodson 1996 page 33, Wundersitz 1996 page 204).
In Queensland recent amendments to the Juvenile Justice Act 1992 establish ‘community conferences’ as an option. Only police officers are authorised to make referrals to a community conference as an alternative to court, although the court can refer a matter to a conference after a hearing where guilt has been determined.

The problems associated with the police role in the conferencing process show how different the systems developed in Australia are from the original New Zealand model. There were significant reforms to policing practices in New Zealand at the same time as the introduction of family group conferences. These reforms included stricter controls on police powers in relation to young people. The Australian variations have simply seen conferencing as expanding the options available to police. Blagg argues that ‘the significant dimension of the process from a Maori perspective was the degree to which it did precisely the opposite and restricted police discretion’ (forthcoming page 7).

The use of police in the conferencing process has particular significance for Indigenous communities given the history of removals and prior police intervention. The role of police, combined with cultural differences and language difficulties, may cause Indigenous young people and their families to appear ‘un-cooperative’ (Dodson 1996 pages 46-47). The police presence increases the reluctance of Indigenous people to attend meetings and contributes to a non-communicative atmosphere for those Aboriginal youth who do attend (WA Aboriginal Justice Advisory Council submission 343, Exhibit 1 page 44; see also Crime Research Centre 1995 page 28). The process may degenerate into further stigmatising of Indigenous young people and their families. 

The problem is accentuated if conferencing supplants other social justice and crime prevention strategies. White (1991) noted that blaming parents for juvenile offending has developed a particular currency which serves to displace other structural explanations of juvenile crime such as poverty, unemployment and racism. 

The ‘criminalisation of inadequate parenting’ has particular significance for Indigenous families. Welfare intervention during the assimilationist period was partially justified by pathologising Indigenous family structures and parenting styles. Indigenous children were removed because Indigenous families could not provide a ‘proper’ home environment on welfare grounds. The same type of ‘blaming’ Indigenous families could result in future interventions and removals.

The available theoretical, observational and empirical evidence strongly suggests that family group conferencing as currently administered, far from being a panacea for offending by Indigenous young people, is likely to lead to harsher outcomes. It is a model that, by and large, has been imposed on Indigenous communities without consideration of Indigenous cultural values and without consideration of how communities might wish to develop their own Indigenous approaches to the issue. Even in new proposals for conferencing such as those in NSW and Tasmania where the police role in referral is somewhat circumscribed, there is no provision for Indigenous organisations and communities to make decisions about whether their children would be best served by attending a conference. The best provision among the new proposals requires only that an elder or other community representative be invited to a conference involving an Indigenous young person.12 

In submissions to the Inquiry some governments identified this problem. None offered an appropriate solution.

The organisation, systems and delivery of service have evolved from non-Aboriginal frameworks, and are based on a Western system of thought, culture and values that is very different to Aboriginal traditions and culture. Aboriginal people are, therefore, inevitably alienated to some degree from the systems and structures that exist to provide them with services (SA Government interim submission page 42).

The solution proposed by the SA Government is essentially one of greater Aboriginal involvement in service delivery – in making the existing framework of laws and policies culturally appropriate. ‘The development of culturally appropriate models of service delivery, and fostering the self-determination of Aboriginal people, is an ongoing challenge’ (interim submission page 42). Yet the solutions proposed aim in essence to make the existing non-Indigenous system ‘work’ for Aboriginal people.13

Similarly, when questioned about the lack of Indigenous involvement in family group conferencing, the WA Government identified factors such as remoteness, the difficulty of locating the whereabouts of families because of mobility, failure or refusal to attend and ‘a wary attitude towards a justice system that is alien to most traditional values and has never really worked for them’ (supplementary information page 11).

There are successful Indigenous diversionary schemes, such as the Koori Justice Workers in Victoria and the community justice groups in a number of Queensland communities. The essential feature of these schemes is that they have developed from community involvement in finding solutions to specific problems. The communities have received funding from government departments but the control, content and form of intervention is determined by the community.

Successful schemes have an inherent respect for developing solutions founded on the right of self-determination.

The success of these programmes makes one thing clear. Solutions to our problems require a collaborative, intelligent, co-ordinated approach which honours the principle of self-determination …
Empowering our old people and revitalising dispute resolution through community programmes have the potential to restore a greater degree of social control and divert our kids from custody (Dodson 1996 page 59).

Developing community justice solutions within a context of self-determination is essentially a practical task. Governments are not required to relinquish their responsibilities but they are required to relinquish control over decision-making for Indigenous communities. Successful Indigenous community justice responses require efficient, practical and continuing support from governments to facilitate communities in the difficult process of finding acceptable solutions. At the same time structural issues must be addressed by governments. These are the underlying social and economic issues which cause crime and demand a co-ordinated Commonwealth, State and Territory response.

Sentencing
Article 37(b) of the Convention on the Rights of the Child states that ‘no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time’. Other international instruments require that imprisonment is a sanction of last resort for juveniles: Rule 1 of the UN Rules for the Protection of Juveniles Deprived of Their Liberty and Rules 17.1(b) and 19.1 of the UN Standard Minimum Rules for the Administration of Juvenile Justice. 

Indigenous young people generally receive harsher sentences in the Children’s Court than non-Aboriginal young people, particularly at the point of being sentenced to detention (Gale et al 1990, Crime Research Centre 1995, Luke and Cunneen 1995, Criminal Justice Commission 1995). Where data are available, government submissions to the Inquiry support this picture.14

Tasmanian Indigenous youth comprise 3.3% of the relevant youth population, 13% of young people on community-based supervised orders and 19.5% of young people detained (Tasmanian Government submission page D-21). 

In Queensland in 1994-95 Indigenous young people comprised 31% of all finalised Children’s Court appearances, although only 3.6% of the youth population. At the lower end of the sentencing scale Indigenous youth were less over-represented. For example, they comprised 21% of those reprimanded and 16% of those fined. In contrast, at the harsher end of the sentencing scale, the level of over-representation was greater with 56% of detention orders being made against Indigenous youth (interim submission page 94). Two other recent reports in Queensland confirm these points (Criminal Justice Commission 1995, Queensland Aboriginal Justice Advisory Council 1995).
The sentencing decision is a complex one taking a wide range of factors into account. A number of points are particularly relevant to the process of sentencing Indigenous young people.
•	Indigenous young people brought before the courts are more likely to come from rural backgrounds and are more likely to appear before non-specialist Children’s Courts. Geographic isolation also raises issues of inadequate legal representation, fewer non-custodial sentencing options and harsher sentencing attitudes by non-specialist magistrates.
 •	Indigenous young people are more likely to have been previously institutionalised, less likely to have received a diversionary alternative to court and are more likely to have a greater number of prior convictions than non-Indigenous young people. Each of these factors increases the likelihood of a custodial order.
•	The existence of a prior record strongly influences the sentencing decision. Indigenous young people tend to have a longer criminal history and are therefore at greater risk of incurring custodial penalties. Because intervention occurs at a younger age with Indigenous children, they accumulate a criminal record much earlier than non-Indigenous children.
•	Discrimination at earlier stages of the system results in Indigenous young people being less likely to receive diversionary options and being more likely to receive the most punitive of discretionary options. These factors compound as the young person moves through the system. Apparently equitable treatment at the point of sentencing may simply mask earlier systemic biases.
•	The current sentencing trend is to treat ‘repeat offenders’ more harshly, either by way of mandatory sentences or greater reliance on sentencing principles of retribution, general and specific deterrence and community protection. This will have its greatest negative effect on Indigenous young people. They are precisely the group who, for reasons discussed above, are more likely to have longer criminal histories.

Repeat offenders
Recent changes to sentencing laws in the NT, WA and Queensland are likely to increase the levels of incarceration of Indigenous young people. Western Australia and Queensland are already the States with the highest rates of over-representation of Indigenous young people in custody.

A recent amendment to the NT Juvenile Justice Act imposes a mandatory 28 day period of detention for 15 and 16 year olds found guilty of a second ‘nominated’ property offence such as criminal damage, stealing, unlawful entry of a building and unlawful use of a motor vehicle. The amendment also creates ‘punitive work orders’ as an additional sentencing option over and above Community Service Orders. According to the Attorney General at the time the amendment was tabled in Parliament, ‘The punitive work order will be hard work; it will be public. Those serving a punitive work order will be obvious to the rest of the community. They will be identifiable as PWOs either by wearing a special uniform or some other label’ (NT Attorney-General ministerial statement, ‘Criminal Justice System and Victims of Crime’, 20 August 1996). 

In WA the Criminal Code was amended to provide for mandatory 12 month custodial terms for adults or young people convicted of their third break and enter offence. In WA the Inquiry was told that the Sentencing Act 1995 (WA) fails to recognise Aboriginal customary law and does not recognise the principle of imprisonment as a sanction of last resort. The principle in fact was deleted from the Criminal Code in 1995. The ALSWA expressed concern that the sentencing principles in the Young Offenders Act 1994 are inadequate. Section 125 directs the court to give primary consideration to the protection of the community when sentencing young offenders who are part of the ‘target group’. The court is to put this consideration ahead of all others, including section 46 which states that ‘accepted notions of justice’ must be incorporated into sentencing decisions. Members of the ‘target group’ are multiple offenders who have served two separate custodial sentences and have committed a further serious offence. This group is likely to have a significant over-representation of Indigenous young people, given their over-representation in juvenile detentions centres (submission 127 pages 371-372). 

The legislation also allows for a remand in custody ‘for observation’ for a period of 21 days to allow for psychological tests, assessment and recommendations concerning future treatment. The ALSWA drew attention to abuse of the power by magistrates which came to light in the so-called ‘Ice Cream Boy’ case. That case involved a young Aboriginal boy who had been remanded for observation for 30 days (contrary to the legislation) after appearing on a charge of stealing an icecream. The matter came before Judge Yeats of the Children’s Court of WA who found that it was the third occasion that the young person had been remanded under section 49, each time for 30 days, within a period of 12 months. Judge Yeats described this as an ‘inappropriate use’ of section 49 to ‘remand a young person in custody for one month on a charge of stealing an ice cream valued at $1.90’. The judge found that section 49 was being used to ‘remove the child from the community’ (submission 127 pages 355-356).

The Young Offenders Act 1994 (WA) also empowers the Director of Public Prosecutions to seek a Special Order of the court to increase the custodial sentence of a young person by 18 months where the young person has a record of re-offending and has committed a serious offence. The prior offending histories of Indigenous young people and their greater likelihood of receiving a custodial sentence mean that they are more likely to be affected by these provisions. ‘Aboriginal youth and country youth are discriminated against by this section as one of the qualifying pre-conditions for the special order is an exhibited pattern of repeated detention for any offence and these groups of offenders are more likely to receive detention sentences for minor offences’ (ALSWA submission 127 page 351). The ALSWA called for the Special Order provisions to be repealed.

The Aboriginal and Torres Strait Islander Social Justice Commissioner has found these sections of the WA legislation to breach,
•	article 3 of CROC because the interests of the child are made secondary to the protection of the community when sentencing,
•	article 9(1) of the International Covenant on Civil and Political Rights and article 37(b) of CROC which provide protection against arbitrary arrest and detention because detention is arbitrary if it is imposed by a process contrary to ‘accepted notions of justice’,
•	the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) because rehabilitation is no longer seen as an important or dominant consideration, and
•	article 37(b) of CROC and recommendation 92 of the Royal Commission into Aboriginal Deaths in Custody which require that imprisonment be imposed as a last resort and only for the minimum necessary period are breached (Dodson 1995 pages 38-39).

Submissions to the Inquiry called for a review of juvenile justice laws in WA as ‘a matter of urgency’ (Kimberley Land Council submission 345 page 74, ALSWA submission 127 and Broome and Derby Working Groups submission 518).

A recent South Australia proposal to introduce general deterrence as an additional sentencing principle in the Young Offenders Act 1993 did not proceed. The proposal was to make general deterrence a discretionary consideration in the Youth Court and a mandatory consideration for juvenile offenders having more serious matters determined in the higher courts.

The Queensland Government has recently introduced legislation to increase the maximum penalty for juveniles from 14 years imprisonment to life imprisonment for certain offences and to transfer more cases from the Children’s Court to the jurisdiction of the District Court, which is also likely to increase sentences. Other amendments have introduced ‘community protection’ as an additional principle in the legislation. A Queensland Aboriginal Justice Advisory Council report on juvenile justice noted that ‘despite increased sentencing options and the introduction of Aboriginal elder cautioning, research … indicates that the Juvenile Justice Act, to date, has failed to prevent nor reduce the rate of Aboriginal or Torres Strait Islander representation in the juvenile justice system’ (1995 page 69).

Punishing parents
Holding parents responsible for offences committed by children and young people has been proposed or introduced as a response to juvenile crime in many Australian jurisdictions in recent years. It rests on the assumption that ‘bad’ parenting is a causal factor in juvenile offending. In many jurisdictions courts can also order that parents pay restitution for offences committed by their children.

The impact of this type of legislation on Indigenous families was raised specifically in evidence to the Inquiry. Whatever the merits or otherwise of holding non-Indigenous parents responsible, there are particular concerns in relation to Indigenous people. In part these arise from the application of the non-Indigenous juvenile justice system to Indigenous people and the history of defining Indigenous parents as ‘bad parents’ and using this as a pretext for intervention and removal of children.

Section 58 of the Young Offenders Act 1994 (WA) allows the court to punish parents for the actions of their children. The ALSWA argued that this section ‘is open to abuse by magistrates and Justices of Peace who may be racist or ignorant of Aboriginal family and parenting roles and consequently may seek to impose fines on Aboriginal responsible adults … It is very much an irrational clause to appease the political view that being tough on parents solves juvenile crime’ (submission 127 page 349). The ALSWA viewed the provision as hypocritical and discriminatory because the State is exempt from being a ‘responsible adult’ where the children and young people who have committed an offence are in the State’s care.15 

Legislation in other States has been criticised for vague definitions of what might constitute ‘wilful neglect’ on the part of parents or ‘substantial contribution’ to the offence committed by the young person (for example, section 197 of the Queensland Juvenile Justice Act 1994). Similar provisions can be found in the NSW Children (Parental Responsibility) Act 1994 and the Tasmanian Statute Law Revision (Penalties) Act 1994 and Child Welfare Act 1960 (Hil 1996 page 281). Both the NSW and Queensland legislation allow the parents to be charged with criminal offences should they breach the court order.

Other recent amendments to the Queensland legislation provide courts with a coercive power to compel parents to attend the court when their children are charged with a criminal offence. A maximum penalty of $3,750 can be imposed on a parent failing to comply with such an order.

Non-custodial sentencing options
The Convention on the Rights of the Child requires that ‘a variety of dispositions … shall be available to ensure that children are dealt within a manner appropriate to their well-being and proportionate both to their circumstances and the offence’ (article 40(4)). Several recommendations of the Royal Commission into Aboriginal Deaths in Custody were designed to increase the availability and use of non-custodial sentencing options as well as Indigenous involvement in and control over the nature of community-based orders (Recommendations 111-114, 236). Recommendation 236 in particular proposed that ‘governments should recognise that local community based and devised strategies have the greatest prospect of success and this recognition should be reflected in funding’.

There are a number of interconnected issues relating to non-custodial sentencing options including the appropriateness of their design for Indigenous young people, their availability both in legislation and in practice, their relative use by magistrates compared to custodial sentences and the supervision of the orders by the relevant department. Non-custodial orders are directly relevant to the issue of contemporary removals. Without adequate alternatives there is an increased likelihood that custodial sentences will be imposed. However, inappropriate or poorly supervised non-custodial options may increase the failure of Indigenous young people to successfully complete the orders and so may result in detention.

In WA Youth Community Based Orders are the principal supervised non-custodial option for young people. The Inquiry was told that Aboriginal people are not involved in the development of these ‘community-based’ options. A secondary concern was the ability of the department to supervise the orders adequately (ALSWA submission 127 page 350). This leads to another set of problems and potential further criminalisation. Indigenous people have the highest level of non-completion in every community-based order category (submission 127 page 267).

The failure to use non-custodial sentencing options as often as possible was also raised. Part of this failure relates directly to sentencing disparities between specialist Children’s Courts, primarily in the large cities, and rural courts constituted by non-specialist magistrates or, in WA, lay Justices of the Peace. Because the majority of Indigenous young people appear in non-specialist country courts, any sentencing disparity disproportionately affects Indigenous children (Luke 1988). Recent data supplied by the Senior Children’s Court Magistrate in NSW indicated that non-specialist country courts impose longer minimum terms and shorter additional terms than specialist magistrates and that in some country circuits young people are about two and a half times more likely to receive a custodial sentence than in specialist Children’s Courts (Scarlett 1996 page 5). This pattern effectively means that Indigenous young people are more likely to receive a custodial order than a non-custodial order and that the order is more likely to have a longer mandatory imprisonment period (the minimum term) and a shorter potential period of supervision after release to the community (the additional term). 

In WA lay Justices of the Peace try and sentence for many criminal offences in rural areas. They impose higher fines than magistrates for comparable offences, capacity to pay was considered in only a minority of cases and half of the defendants fined by the Justices of the Peace defaulted on their fine (ALSWA submission 127 page 254). Again these differences directly affect Indigenous youth because they are more likely to be sentenced in areas where Justices of the Peace preside over courts. The ALSWA strongly argued that the power of Justices of the Peace in WA to determine charges and impose penalties, 

[Significantly] contributes to on-going Aboriginal juvenile over-representation in detention centres … While these powers remain in place, Aboriginal juveniles in the rural and remote areas will continue to be subjected to an unregulated second class system of justice (submission 127 page 373).

The Inquiry was informed of ‘a great need to find alternative placements and programs for Aboriginal juveniles’ (ALSWA submission 127 page 374). In WA alternatives could involve placement within Aboriginal communities and work on Aboriginal owned stations. In NSW the Inquiry was informed that ‘the Government should put resources into programs that will divert Aboriginal children from the criminal justice system and at the same time empower communities to take control of social problems in their own communities’ (Western Aboriginal Legal Service (Broken Hill) submission 755). The Tasmanian Aboriginal Centre (TAC) stated that ‘resources need to be directed to the Aboriginal community to establish alternatives to imprisonment and detention of young Aborigines’ (supplementary submission 325 page 4). Lack of resources has prevented the TAC from continuing with a program of placing Aboriginal children at Rocky Cape as an alternative to detention (supplementary submission 325 page 4).

Indigenous organisations in Queensland have complained of the failure to use community service orders frequently enough and to resource Aboriginal devised and controlled community-based programs adequately (Cunneen and McDonald 1997 page 177). Generally, the major issue to emerge in relation to Indigenous community-based strategies is the failure to provide adequate resourcing. ‘It is clear that no matter what non-custodial options are available in juvenile justice legislation, a central issue will be the extent to which they can be utilised in practice’ (Cunneen and McDonald 1997 page 178).

Conclusions
State and Territory governments cannot be accused of doing nothing in relation to specific programs for Indigenous young people. On the contrary, all jurisdictions can point to various initiatives. The issue is whether governments are doing enough in light of the massive levels of over-representation and, more importantly, whether what is being done reflects the types of solutions which Indigenous people see as important.

The Inquiry was told of two Indigenous-run programs that had come into conflict with State governments. In Queensland Piabun provides an innovative approach to developing self-esteem and deterring offending among young people. It was established by a group of Brisbane community elders to supervise Indigenous young people on court orders (Piabun submission 398). Initially the program had the support of the Department of Family Services and Aboriginal and Islander Affairs and the program claimed considerable success in preventing re-offending. State government funding for the program was stopped in December 1995 and not recommenced until the later part of 1996 (Mark Johnson submission 751 page 7). It was suggested that the decision to stop funding was related to resistance by the elders to greater departmental control over the project (submission 398).

A widely recognised Aboriginal-run program in WA is the Lake Jasper Project. The project assists Indigenous young people and their families. Originally it was funded by the Australian Youth Foundation and later by the State Government. However State support has been withdrawn. The Inquiry was told that the project was established ‘amidst massive opposition from all sections of the community’. ‘We structured the program and gave it what we considered to be strong Aboriginal values … to assist the kids with some of the social problems, some of the cultural problems and spiritual problems that they were having’ (Mike Hill evidence 416). The WA Government told the Inquiry that the Division of Juvenile Justice does not refer young people to the Lake Jasper project although, if they were referred by the courts or other agencies, Juvenile Justice officers would provide supervision of orders (Exhibit 19).

I believe the government has a political problem with the project and it’s about self-determination. I don’t think the government likes or wants to have Aboriginal people in autonomous areas of self-determination. It’s far too dangerous (Mike Hill evidence 416).

Consistent with the right of self-determination, the Royal Commission into Aboriginal Deaths in Custody recognised that Indigenous organisations should play a key role in the sentencing process of Indigenous young people. Recommendation 235 states,

That policies of government and the practices of agencies which have involvement with Aboriginal juveniles in the welfare and criminal justice systems should recognise and be committed to ensuring, through legislative enactment, that the primary sources of advice about the interests and welfare of Aboriginal juveniles should be the families and community groups of the juveniles and specialist Aboriginal organisations, including Aboriginal Child Care Agencies (emphasis added).

Nowhere is this recommendation adequately implemented. Recent research on the extent to which Indigenous organisations have a role in the sentencing process shows only limited and discretionary involvement. Nationally there has been some improvement but nowhere is the change as extensive as the Royal Commission recommendation demanded (Cunneen and McDonald 1997 page 175). The Tasmanian Government’s reading of Recommendation 235 is illustrative.

The proposed Youth Justice Bill enables families and other interested parties to be involved in decisions on the sanctioning of young people through the cautioning and family conferencing process (submission page D-25, emphasis added).

The limitations of this approach in relation to both cautioning and conferencing have been noted above. Linda Briskman, an academic and researcher for the Secretariat of National Aboriginal and Islander Child Care, told the Inquiry,

… self-determination seems to be equated with little more than consultation … When you look at government self-determination policies, control is still maintained very strongly. Governments have actually been unwilling to transfer power to Aboriginal communities … that’s the crux of the problem (submission 134 pages 6 and 9).

The Inquiry was repeatedly told that Indigenous people want greater control over what is happening to their children and young people. For example, the Broken Hill office of the Western Aboriginal Legal Service informed the Inquiry of measures which local Aboriginal community leaders have argued would be appropriate non-custodial options in western NSW. These include the use of elders’ panels to determine appropriate responses and the use of available land resources such as Mootwingee National Park and Wienteriga Station where young people could diverted from detention centres and supervised by an Aboriginal unit. These responses are about taking ‘some control over juvenile justice’, redressing destructive policies, empowering elders and ‘bringing children into closer contact with their culture’ (submission 755). In Tasmania the TAC would like to use Rocky Cape, St Helens and Badger Island, all of which have significant cultural meaning for Aboriginal children, as sites for alternative programs for Indigenous young people (supplementary submission 325 page 4).

Detention centres
Isolation is a key problem for Indigenous young people incarcerated in juvenile institutions. United Nations Rules provide that children should have the right to regular and frequent visits (at least twice each week) and the right to communicate by writing or telephone (at least twice each week). A recent survey of NSW juvenile detainees found that 90% received less than the minimum standard in relation to visits and 76% less than the minimum standard in relation to telephone communications (NSW Ombudsman 1996 page 70).

In Western Australian the Inquiry was told,
Juvenile justice legislation … is extremely harsh. For Kimberley parents it means that their children end up in detention centres in Perth where they fear children learn to become criminals and suffer isolation and separation from their families and the racism that is endemic to these institutions (Broome and Derby Working Groups submission 518).

Isolation is acute for young people from the country, most of whom are Aborigines. It is extremely difficult for their relatives to visit them. Recognising this, prescribed visiting hour restrictions are waived … However, this concession, in fact, hardly addresses the issue of ability of family members to get to Perth to visit their children in the first place. Traditionally-oriented young people are especially vulnerable in these institutions with their totally alien environments and regimes. Isolation can be crippling. These inmates are almost never visited by their families and they are less likely than others to know any other inmate. They may also experience language difficulties (Wilkie 1991 pages 156-7).

Recent interviews with 33 Indigenous young people in detention centres in NSW found that 17 had reported receiving no visits from their families (Howard 1996 page 19). The problems were made evident in evidence to the Inquiry.

My own grandson’s been taken down to Wagga to the Riverina Juvenile Justice Centre. We was only able to visit him once [from Broken Hill] because of the distance – the miles, and the money. We just haven’t got the money … to go down there. And they are locked away from us. We got no access to them … Because we’re very isolated it doesn’t give us the chance to get down and see our kids.
Confidential submission 762, New South Wales.

Most detention centres in NSW are concentrated around the Sydney metropolitan area. The NSW Government advised the Inquiry that financial assistance can be provided to families to visit children in detention centres and that the decision to construct two new centres in Grafton and Dubbo will allow Indigenous young people to remain closer to their communities. However, a recent report by the NSW Ombudsman found that the Department of Juvenile Justice had seriously underspent funds set aside to help families visit their children. In addition there were restrictive rules on visiting and telephone contact and the withdrawal of contact as a punishment, as well as allegations of staff mistreatment of young people (NSW Ombudsman 1996 page xiv). More generally it was found that,

Many shortcomings impact negatively on the dignity and rights of detainees … In some centres, even very basic issues such as food and clothing were found to be substandard. Privacy and respect for individual and cultural differences were also commonly ignored (NSW Ombudsman 1996 page iv).

Building smaller regionally based detention centres specifically to mitigate the isolation of Indigenous children is a vexed issue. New detention centres may divert resources from community based options and lead to a further growth in the numbers of Indigenous young people in detention. The Aboriginal and Torres Strait Islander Social Justice Commissioner has argued against this option, preferring instead to see ‘a proliferation of Indigenous community-based programs for Aboriginal young offenders’ (quoted by NSW Ombudsman 1996 on page 73). However, the NSW Ombudsman recommends the development of smaller detention centres in non-metropolitan areas (1996 page 74).

Similar problems are apparent in juvenile detention centres in Queensland. The report of the Queensland Aboriginal and Torres Strait Islander Overview Committee draws attention to allegations of staff mistreatment of young people, misuse of handcuffs, abuse of ‘time-out rooms’ and ‘lock-down’ procedures, children being placed in danger of sexual abuse, the employment of inappropriate staff and unacceptable emotional and physical disciplinary procedures in some Queensland detention centres. In addition, there have been lack of cultural awareness, lack of culturally appropriate programs and resistance to family and organisational contacts for Indigenous residents (1996 page 59). Similar issues were brought to the attention of the Inquiry by a former Official Visitor who noted among other things,

The atmosphere of violence is so great in the detention centres that I felt intimidated being there … staff have no idea of how to relate to Aboriginal and Torres Strait Islander children. They are often yelled at, physical restraint is applied in a very horrible and threatening manner … Often boys will have no family visits for long periods of time … boys are forced to sit around all day in the centres with few programs to attend and nothing meaningful to do … they have very few rights and suffer because of racism (submission 427 pages 1-2).

The TAC criticised the standards of care at the Ashley Youth Detention Centre in Tasmania (submission 325 page 122). The Government advised that all complaints have been investigated and a review of the Centre has been completed (Tasmanian Government submission page D-29). Most detention centres now have some type of specific art, educational or cultural program for Indigenous detainees. Some detention centres have Aboriginal Support Groups who visit detainees.16 However, the extent to which these programs can compensate for removal from family, community and country must be questioned.

The provision of Indigenous specific cultural education and support programs within the centre can in no way compensate her for the loss of culture which is the result of her removal to a juvenile justice detention centre. The unique impact that removal has on Indigenous young offenders when considered in the context of Indigenous culture and the long history of removal policies which have specifically affected Indigenous people and their social structures and culture cannot possibly be dealt with by the superficial provision of ‘cultural’ programs within a centre (Aboriginal and Torres Strait Islander Social Justice Commissioner quoted by NSW Ombudsman 1996 on page 75).
Cultural programs are important but they need to be evaluated in terms of their quality and in terms of staff commitment to ensuring their success. They should not be seen as compensating for the effects of removal.

A related issue is the employment of Indigenous youth workers in detention centres. Indigenous young people find it easier to relate to Indigenous workers. A survey of NSW detention centres found that the proportion of Aboriginal workers in detention centres varied between 1% and 6% of each detention centre workforce while the proportion of Indigenous inmates varied between 12% and 50% (NSW Ombudsman 1996 page 77). The Ombudsman recommended a review of employment strategies for Indigenous workers as well as greater cross-cultural training for staff.

The Inquiry was told in Western Australia, South Australia and Tasmania that there is a need to establish Aboriginal-run facilities as alternatives to detention centres (Broome and Derby Working Groups submission 518, confidential submission 289 WA, Tasmanian Aboriginal Centre supplementary submission 325 page 4). The TAC envisaged that such an alternative facility would deal with both young offenders and children in cases of breakdown in family support (submission 325 page 4).

Juvenile deaths in custody
The death in custody of an Indigenous young person constitutes the final and absolute removal of that young person from his or her family and community. 

Fifteen  Indigenous young people died in custody in the eight years between May 1989, when the Royal Commission into Aboriginal Deaths in Custody ceased investigations, and May 1996 (Aboriginal and Torres Strait Islander Social Justice Commissioner 1996 page 199). Five of these deaths were in institutional settings and ten were a result of police interventions (nine in police pursuits and one 16 year old youth shot dead after threatening police with a replica pistol). 

A review of those deaths by the Aboriginal and Torres Strait Islander Social Justice Commissioner found extensive breaches of Royal Commission recommendations in relation to Indigenous young people, many relating to the circumstances leading up to the use of custody. Perhaps most disturbing was the finding that, as the Indigenous juvenile population increases proportionate to the non-Indigenous youth population, the likelihood of increasing numbers of Indigenous young people dying in custody will also increase unless significant reforms are introduced (1996 page 199).

Conclusions
The issues affecting Indigenous young people in the juvenile justice system have been identified and demonstrated time and time again. It is not surprising that Indigenous organisations and commentators draw attention to the historical continuity in the removal of Indigenous children and young people when the key issues in relation to juvenile justice have already been identified for some time yet the problem of over-representation appears to be deepening.

The issues relating to policing and the courts have been well documented since Eggleston’s pioneering work in 1976. Problems with Aboriginal/police relations across most of Australia were well documented in the early 1980s (ADB 1982, Roberts et al 1986) and in national inquiries and regional studies in the late 1980s and early 1990s (International Commission of Jurists 1990, National Report 1991, HREOC 1991). The failure to accord fair treatment to Indigenous young people in diversionary options such as police cautioning or less intrusive methods such as summons and court attendance notices has been demonstrated since the mid-1980s (Cunneen and Robb 1987, Broadhurst et al 1991, Wilkie 1991). The failure of other diversionary schemes such panels to meet the needs of Indigenous youth has been described since the end of the 1980s (Gale et al 1990, Broadhurst et al 1991, Wilkie 1991).

Failure to comply with police instructions regarding the presence of a parent or adult, failure to notify Aboriginal Legal Services and the inadequacy of police guidelines in regulating police behaviour have been commented upon periodically for a decade and a half (for example, Rees 1982, Cunneen 1990, Warner 1994). 

All of these issues were addressed comprehensively in the findings and recommendations of the Royal Commission into Aboriginal Deaths in Custody. The Royal Commission went on to address the need for self-determination and negotiated solutions between governments and Indigenous people in its National Report in 1991.

New legislation has done little to confront the issues which affect Indigenous young people or to reduce the levels of police and detention centre custody. Some of the legislative changes such as the repeat offender sentencing regimes are unashamedly punitive in their intent. Others, such as the introduction of new diversionary schemes, have been perceived as more enlightened. Whole legal systems regulating juvenile justice have changed in some States like SA, WA and Queensland in the last few years. Yet a recent review and evaluation of the new South Australian system could be applied to most of Australia.

These figures clearly suggest that, in overall terms, the position of Aboriginal youths within the new juvenile justice system does not seem to be any better than under the old system. They are still being apprehended at disproportionate rates and once in the system, are still receiving the ‘harsher’ options available (Wundersitz 1996 page 205).

Why have new regimes failed? The evidence before the Inquiry suggests several reasons. Many of the more progressive changes have been restricted in form, content and applicability. They have been designed and implemented as non-Indigenous systems with the expectation of finding solutions to the problems facing Indigenous people. Tokenism pervades some of the changes, particularly in relation to police cautioning and family conferencing schemes. Finally, the ‘underlying issues’ which contribute so substantially to Indigenous offending levels have still not been addressed.

The juvenile justice system provides the linchpin for the criminalisation and removal of a new generation of Indigenous children and young people. The reasons for this intervention can be linked to a number of specific factors relating to policing and the administration of justice, as well as the interaction of the many underlying social and economic issues which are likely to spark intervention. 

It needs to be borne in mind, however, that in relation to many Aboriginal youths who become enmeshed with the criminal justice system, we are talking about youths whose formative experiences have involved profound neglect, routine violence, emotional and physical deprivation (including some instances of virtual starvation) and sexual abuse (Crime Research Centre 1995 page 2).

This chapter has not dealt with the ‘underlying issues’ per se although they are clearly important in understanding why Indigenous young people come into contact with juvenile justice agencies in the first instance. The underlying issues of socio-economic disadvantage and dispossession influence contact with both child welfare and juvenile justice agencies.

Endnotes

1	Police retain the power under section 18 of the Young Offenders Act 1994 (WA). A young person suspected of intoxication can be detained in a police lock-up if no responsible person can be located (Beresford and Omaji 1996 pages 115-6).
2	The Australian Government submitted reservations to article 37(c) of CROC and articles 10 (2) and (3) of the ICCPR (see Aboriginal and Torres Strait Islander Social Justice Commissioner 1996 pages 205-7).
3	A recent NSW survey indicated that wards are 15 times more likely than other young people to be incarcerated in detention centres. Indigenous children and young people comprised 9% of all wards but 37% of wards who received a juvenile justice court assessment (Community Services Commission 1996 pages 8 and 24).
4	Various types of summons exist in different jurisdictions including court attendance notices and citations. Some jurisdictions also have infringement notices for some offences which are similar to a parking fine.
5	Formal processing includes arrest, summons and caution.
6	Indigenous young people comprised 58%, 63%, 69% and 54% of watchhouse juvenile detentions over the four year period (Queensland Government final submission page 59).
7	‘The police recording system is unable to provide meaningful data with regards to bail application outcomes’ (Victorian Government final submission page 122).
8	The NZ Children, Young Persons and Their Families Act 1989 provides for family group conferences (FGCs). The NZ model and Australian adaptations have been discussed by Alder and Wundersitz 1994 and Hudson et al 1996. For an Australian Indigenous perspective on NZ FGCs, see Dodson 1996 pages 42-45.
9	In NSW the only recognition of cultural difference is that the administrator of conferences, when choosing a convenor to run the conference, ‘would need to consider among other things, whether it is possible to match the young person with a Convenor from the same cultural background, distance considerations, and so on’ (NSW Attorney-General’s Department 1996 page xv).
10	The eleventh ‘guiding principle’ of the proposed NSW ‘accountability conferences’ is that ‘it should be culturally appropriate’ (NSW Attorney-General’s Department 1996 page 38).
11	Section 3(2) of the Young Offenders Act 1993 (SA) lists a number of statutory policies. Paragraph (e) requires proper regard for a youth’s sense of racial, ethnic or cultural identity. However, there are no specific requirements in relation to either police cautions or family conferencing for culturally appropriate Indigenous participation – let alone decision making. 
12	For example, section 30(2)(c)(v) Youth Justice Bill (Tas). The WA Young Offenders Act 1994 requires that when the offender is a ‘member of an ethnic or other minority group’ the Juvenile Justice Team should include a person nominated by members of an ethnic or minority group where practicable. 
13	A recent review of the SA juvenile justice system recommended that a separate Aboriginal conferencing team be established to increase Aboriginal attendance, provide information, determine appropriate support people, act as co-ordinators and seek feedback from the community ‘regarding the development of more culturally appropriate conferencing processes’ (Wundersitz 1996 page 125). However there is no more general recognition of a decision-making role for Aboriginal communities or their organisations as a right of self-determination (Wundersitz 1996 page 208).
14	The only apparent exception is the ACT where 4% of juveniles in custody were Indigenous and 5% of juveniles on Community Service Orders were Indigenous. No numbers or details of other sentencing outcomes were supplied (ACT Government interim submission page 25). The Victorian Government noted that its ‘Department of Justice is unable to provide any data in relation to differential sentencing options for Aboriginal and non-Aboriginal offenders’ (final submission page 122).
15	States and Territories typically exempt themselves from responsibility for the behaviour of young people under their care and protection (see Hil 1996 page 281).
16	For instance the Queensland Government listed the following programs: Aboriginal Life Skills, Offending Behaviour Program, Self-Discovery through Drama and Music, Elders Visits and Cultural Education (interim submission page 96). There is also a Community and Culture Integration Program with the aim of maintaining, developing and restoring the cultural, community and family links of Indigenous young people in detention (final submission page 45).

25		Underlying Issues
State and Territory legislation, programs and policies in the areas of child welfare, adoption and juvenile justice are intended to provide a non-discriminatory framework for the administration of services. In many cases, programs are designed with the objective of reducing the extent of contemporary removals of Indigenous children and young people. In spite of this, the over-representation of Indigenous children among children living separately from their families and communities, temporarily or permanently, remains high. It must be acknowledged that there are broad social, economic and cultural causes for continuing removals.

Many submissions to the Inquiry drew attention to the need for a broad approach to understanding the reasons behind contemporary removals of Indigenous children and young people (for example, ALSWA submission 127, SNAICC submission 309, NSW Aboriginal Education Consultative Group (AECG) submission 362). ‘A broad and detailed approach is necessary because some current laws, policies and practices which initially may not appear relevant to the terms of reference of the National Inquiry, on close examination, are very relevant (submission 127 page 11). These include ‘health, housing, education, employment, the legacy of historical abuse, denigration and loss of identity, substance abuse and despair’ (submission 127 page 337).

Law, policy and practice are affected by poor socio-economic conditions which make Indigenous children and young people more vulnerable to removal. For example, stress factors arising from socio-economic position and demography arise in welfare department interventions in all families. These factors are particularly prevalent in Indigenous families. In Queensland 12% of the population receives government benefits, 51% of protective services’ clients receive benefits and 62% of Aboriginal and Torres Strait Islander protective services’ clients are in receipt of benefits. In a study of stress factors experienced by client families in Queensland a higher percentage of Indigenous clients faced stress factors in every category. The categories with the greatest disparity between Indigenous and non-Indigenous clients’ experiences of stress factors are substance abuse (68% compared with 37%), cultural dislocation (38% compared with 15%), accommodation problems (40% compared with 33%) and geographical isolation (30% compared with 20%). These stress factors also affect contact with juvenile justice systems (Queensland Government final submission page 35).

It is facile and dishonest to pretend that many of our kids don’t get into trouble … Given the circumstances they are born into, the stack of disadvantages against them, they are not doing too badly. Any group of young people growing up in our world, with our socio-economic profile, would act up and get into strife. Lay the veneer of history, prejudice and cultural disjuncture over their starting point and the problem deepens  (Dodson 1995 page 26).

The frustration felt by Indigenous young people can be expressed in behaviours that are destructive to the individual and the community. To understand that behaviour it is necessary to consider the nature of the socio-economic conditions in which Indigenous people live. Some factors arise from cultural difference. Others are the results of dispossession and marginalisation – poverty, ill-health, poor education, high unemployment and homelessness.

Demography
The demographic profile of Indigenous peoples in Australia has an important influence on the absolute numbers of Indigenous children and young people likely to come into contact with juvenile justice and welfare agencies. As a result, it affects the number of Indigenous children and young people separated from their families and communities. 

The 1991 Census showed double the proportion of young people in the Indigenous population compared to young people in the non-Indigenous population. Approximately 15% of the Indigenous population is under five years of age, compared to 7% in the general population. Young people aged 10 to 15 years comprise 14% of the Indigenous population in Australia. For all Australians the proportion is 9%. Approximately 22% of the total Australian population is under 15 years compared to 40% of the Indigenous population (Dodson 1995 page 15). By 2000 this age group of Indigenous young people will grow by 26%. The same age group in the general population will grow by 1%.

The Australian Institute of Criminology has estimated, based on current imprisonment levels and demography, that by 2001 there will have been a 15% increase in the number of Indigenous young people in detention (ALSWA submission pages 339-340; see also Dodson 1995 page 15). 

Indigenous children have a far higher rate of removal from their families as a result of neglect compared with abuse than the general population. Neglect is the most prevalent reason for substitute care in the under two age group and more generally among young children. In 1993 12% of Indigenous children involved in substantiated abuse and neglect were under the age of one compared with 7% for all children (Angus and Zabar 1995 page 17). The relationship between poverty and neglect and the projected demographic change together are likely to cause similar increases in welfare interventions to those expected in juvenile justice.

Family and cultural relations
Indigenous societies in Australia have very different cultural concepts of childhood and youth. Generally they do not impose the same separation or exclusion of children from the adult world as non-Indigenous society does. Responsibility for children and young people is shared through the kinship system and the wider community (Watson 1989, Sansom and Baines 1988). 

Cultural difference, particularly different family structures, can lead to adverse decisions by juvenile justice, welfare and other agencies, particularly where cultural difference is not understood or does not inform policy development and implementation. At its worst, cultural difference can be treated as a type of abnormality or pathology because it differs from a perceived dominant cultural norm. In other words, if Indigenous child-rearing is seen as pathological or abnormal, Indigenous families will be more liable to intervention by social workers, police and courts. Assimilation can become an implicit result as the values of the dominant group are imposed on Indigenous people.

As well as differences in child-rearing practices, there are significant differences in family structures between Indigenous societies and the dominant culture. A survey of Indigenous people conducted by the Australian Bureau of Statistics in 1994 (the 1994 ABS survey) showed that Indigenous youth (15 to 24 year olds) have different household relationships with their parents than non-Indigenous youth. Less than half (45%) of Indigenous youth lived with their parents compared to nearly two-thirds of non-Indigenous youth. Indigenous youth were more likely than non-Indigenous youth to live as partners in a relationship (21%), to be lone parents (9%) or to live with other relatives (14%).

There were also significant differences in family structure for Indigenous children aged 10 to 15 years compared to non-Indigenous children in the same age group. The 1991 census showed that over one-third (37%) of these Indigenous children lived in single parent families, compared to 13% of non-Indigenous children in the same age group; over one-third (36%) lived in an extended family unit, compared to 1.5% of non-Indigenous children in the same age group; and the typical size of these households was nearly twice the size of non-Indigenous households (4.6 persons compared to 2.6) (Groome and Hamilton 1995 page 22). 

Different cultural patterns such as family structure and child rearing practices can lead to poor service provision or poor access to entitlements. The Report of the Aboriginal Women’s Task Force noted that extended family responsibilities in child-rearing lead to situations where women with responsibilities for child-rearing, such as grandmothers, were not necessarily receiving entitlements such family allowances (Daylight and Johnstone 1986 pages 31-32). The attitudes of non-Indigenous staff in government agencies with a direct role in the provision of services for Indigenous people also need to be considered. The attitudes which governed the management of Aboriginal children during the first two-thirds of the twentieth century may have changed officially but may still influence the way services are administered (ALSWA submission 127).

Cultural difference is also evident in the ethnocentric assessment of Indigenous parenting and family structures by welfare departments. From the late 1970s studies have identified the ethnocentric nature of social background reports and psychological tests administered to Aboriginal young people coming under state supervision (Milne and Munro 1981). The reports displayed prejudices in relation to Aboriginal culture, family life and child rearing practices through descriptions of ‘dysfunctional families’ and ‘bad home environment’ (Gale et al 1990 page 102, Carrington 1993 page 48). 

Ethnocentric assumptions about family structure, individual and family dynamics and cultural values lead not only to unnecessary interventions but also to inappropriate arrangements for children in substitute care. Recurring themes are,
•	the implicit or explicit interpretation of extended familial responsibility as ‘abandonment’ or ‘inadequate supervision’,
•	the implicit or explicit interpretation of travel to maintain familial and cultural relationships and responsibilities as ‘instability’,
•	differences in the level of freedom and responsibility accorded to Indigenous children interpreted as ‘lack of supervision’ or ‘lack of control’ over children, and
•	the cultural biases which become incorporated in assessments and reports may be used to justify more interventionist decisions by child welfare and juvenile justice agencies as well as decisions in relation to matters such as child removal, adoption and custody.

Cultural factors were also examined in the 1994 ABS survey. The results point to the importance of Indigenous culture in the lives of young people. Over two-thirds (68%) of Indigenous youth had attended cultural activities in the previous 12 months. Over half (56%) identified with a clan, tribal or language group. Just over 70% recognised particular homelands.1 Almost one in five Indigenous young people spoke an Aboriginal or Torres Strait Islander language and for 13% an Indigenous language was the main language. In rural areas, 42% of young people spoke an Indigenous language and for 38% of youth in rural areas an Indigenous language was the main language spoken (ABS 1996 pages 2-5). The results of the survey point to the active role played by culture in the lives of Indigenous young people and the active part played in cultural life by Indigenous youth.

Domestic violence
The Inquiry was told that domestic violence is a problem in many communities (ALSWA submission page 322). It particularly affects Indigenous women and their children. The failure to deal with domestic violence and the failure to meet the legal needs of Indigenous women for protection against violent spouses inevitably affects the children and young people of families where violence is a problem. According to the 1994 ABS survey, many Indigenous young people identified family violence as a problem in their area. This view was more pronounced among Indigenous young women than young men (47% compared to 36%) (ABS 1996 page 23).

The majority of Indigenous children ‘find high levels of warmth, acceptance, support and personal security in their homes. There are, however, Indigenous homes where there is violence and abuse. We met a number of young people who left their homes because of the unbearable tensions within them’ (Groome and Hamilton 1995 page 28). Research has found a connection between a range of juvenile offences, problem behaviour such as truanting and domestic violence in the home (Beresford and Omaji 1996 page 45).

Domestic violence is a frequent feature in welfare department interventions into Indigenous families. Domestic violence may cause the child’s home or a relative’s home to be assessed as unsuitable for the child. The mother of the child may be in hospital as a result of domestic violence and the department may intervene while the child is in alternative care. The mother may be in a refuge as a result of domestic violence and be assessed as having unsuitable accommodation. Frequently domestic violence is one of the many stresses affecting a mother’s capacity to look after her children. Many communities have identified domestic violence as a serious problem affecting children’s well being.

The most frequently cited example of child abuse was in the context of an incident of domestic violence, in which children were frightened of the situation and ran away scared. The children almost always ran away to their kami (grandmother) (Harrison 1991 page 9). 

Alcohol and substance abuse
Domestic violence often occurs in conjunction with alcohol and other substance abuse. Alcohol is a factor in a very high number of welfare and criminal justice interventions in Indigenous families. It is associated with incapacity to care for children, violence, lack of money for food and other essentials, stealing, poor health and many other problems. The relationship between alcohol and other substance abuse and intervention by child protection and criminal justice agencies is undisputed.

Substance abuse is a major problem for Indigenous young people in some communities (Beresford and Omaji 1996 pages 134-6). It can lead to intervention by welfare or juvenile justice authorities.
The criminal justice system continues to remove Aboriginal children from their families. In a stunning illustration of this, recently a 15 year old boy, with no criminal history approached a police station in the far west of New South Wales with the proceeds from a recent break, enter and steal. He claimed to have been responsible for the crime. He asked to be locked up and taken away from his community ‘so I can get away from the petrol sniffing’. The police obliged and he was refused bail and prosecuted. Subsequently, information revealed that he had not committed the crime at all. Rather, he had simply taken himself to the only community service option in the town which he felt could do something about his desire to ‘get away from the petrol sniffing’.

The fact that a 15 year old boy found it necessary to go to the criminal justice system in order to get assistance for a social/medical problem is an appalling situation (Western Aboriginal Legal Service (Broken Hill) submission 775).

Communities in WA have attempted to use by-law making provisions under the Community Services Act 1979 (WA) to control the sale and distribution of alcohol. They have been hindered by delays in proclaiming their communities as ‘communities’ under the Act and in processing and approving by-laws. Some communities which have requested assistance to become dry have been forced to wait for years (Crough and Christophersen 1993 page 126).  Others, however, in the Northern Territory and WA have successfully worked with the Federal Race Discrimination Commissioner to restrict the supply of alcohol to their members.

Indigenous women are looking at all avenues to address alcohol abuse. Some of their initiatives include programs to help men, ‘beat the grog’ campaigns, Alcoholics Anonymous, training alcohol counsellors and night patrols. Alcohol and other substance abuse such as petrol sniffing are at the heart of social problems and exist at crisis proportions in some communities.

Health
Alcohol and substance abuse is not the only health issue. Poor health, the failure of governments to remedy environmental health problems and mental illness are all parts of life for many Indigenous people including children and young people (submission 127 pages 157-68). Article 24 of the Convention on the Rights of the Child declares the right of children to the enjoyment of the highest standards of health and to facilities for the treatment of illness and rehabilitation of health.

The 1994 ABS survey showed that one-quarter of Indigenous youth reported a long-term illness or condition. The major illness reported was asthma, followed by ear or hearing problems, skin problems and chest problems (ABS 1996 page 6). 

Hearing loss is endemic in Indigenous children and linked to poverty. The incidence varies between areas, but an estimated minimum of 20% of Indigenous pupils in urban areas are affected by marked hearing loss resulting from otitis media. ‘Problems with hearing are one of the major causes of low performance in language skills among Aboriginal children and can also be related to behavioural issues’ (Groome and Hamilton 1995 page 25). Numerous reports, including those of the Royal Commission into Aboriginal Deaths in Custody and the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, have drawn attention to the connections between hearing loss, behavioural problems and intervention by juvenile justice or welfare agencies (National Report 1991 Volume 2 pages 364-8, House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs 1994 pages 325-31).

Poor nutrition is a direct cause of many diseases. Often poor nutrition in childhood combined with substance abuse such as petrol sniffing leads to serious adulthood diseases and disability. Welfare interventions in Indigenous families are frequently related to poor nutrition. For example Indigenous children are severely over-represented in cases of ‘failure to thrive’, one of the most common reasons for neglect orders being sought for children under two years. Indigenous children with disabilities are the most likely to be placed in non-Indigenous substitute care and in juvenile detention centres. 

The Aboriginal Mental Health Unit (NSW) commented upon the impact of forcible removals on Indigenous people’s mental and general health.

Presenting issues arise predominantly from major grief or loss, trauma, the consequences of family members’ removal and disruption of the strong bonds of family and kinship which characterised Aboriginal culture … we believe that it has been the single most significant factor in emotional and mental health problems which in turn have impacted on physical health (submission 650 page 4).

Stress is another health issue which affects Indigenous families. It is related, among other factors, to living in poverty and to unemployment and under employment. In the 1994 ABS survey nearly 30% of individuals aged 15 years and over reported worrying about going without food. This worry was particularly prevalent in households where no-one was working and where there were dependent children (ABS 1995a page 13).

Housing
The Inquiry was told that ‘without housing, an individual’s education, economic and socio-cultural developments are severely curtailed. Without adequate housing, family cohesion and ability to care for children is severely inhibited’ (ALSWA submission 127 page x). Aboriginal people have problems accessing adequate housing primarily for three reasons.
Firstly, the most significant influences are the philosophy, policies and practices of Homeswest. Secondly, the difficulty in obtaining adequate private rental accommodation disadvantages Aboriginal people. Thirdly, the practice of allocating housing to Aboriginal communities often in remote and fringe areas of the State further disadvantages them (ALSWA submission 127 page 118).

The WA Aboriginal Legal Service criticised Homeswest’s policies on eviction and threatened eviction. ‘[M]any of the policies of Homeswest amount to direct and indirect discrimination against Aboriginal applicants and tenants’ (submission 127 page xi). It drew attention to the high level of discretion at the regional level in placing Aboriginal families and argues that Aboriginal people are treated less favourably (submission 127 pages 121-148). ‘There are places in the Pilbara and Kimberley regions where the state of housing can only be described as unacceptable for human habitation’ (submission 127 page 152). Other reports and inquiries have drawn a similar picture of Indigenous housing throughout Australia.2

Unsatisfactory housing can have a direct link with the removal of Indigenous children and young people.

It’s really awful. It is so difficult to try to bring up my children and send them to school when I am moving from one place to another. Since I was kicked out of Homeswest accommodation I haven’t been able to find any accommodation. I live on Social Security and I have two children who are in high school. It is hard enough for our children to stay at school but when they have to move from school to school because we need to move and have a roof over our heads, it is very unsettling for them. That’s why I have only got the two older boys. My daughter who is only ten lives with an aunty of mine in B. I wanted to look after her but some social worker from the Department said that it was best if we stayed in one place for my daughter’s development. I was too scared to argue with the social worker because I know what the Department can be like.
Quoted by ALSWA submission 127 on page 117.

According to the 1994 ABS survey, some 95% of Indigenous young people lived in private dwellings, of which three-quarters were rented. The percentage of Indigenous youth in rental accommodation was about twice the national youth average. Indigenous young people were far less likely to have the security offered by home ownership. In addition, about one-third of all Indigenous young people living in private dwellings stated that the accommodation was unsatisfactory. The main problems reported were the need for repairs, not enough bedrooms and not enough living space (ABS 1996 page 12). Indigenous families are 20 times more likely to be homeless than non-Indigenous families (Dodson 1996 page 79).

Employment and income
The national picture of Indigenous employment and income shows little improvement in recent years.

The 1994 ABS survey reveals that despite efforts to increase the status of the Indigenous labour force to that of the general population there was no movement in this direction during the early 1990s. Most new jobs for Indigenous people were connected with the expansion of Community Development Employment Programs (CDEP). One result of the reliance on CDEP employment has been a greater level of part-time employment among Indigenous workers than among the general workforce (ABS 1995b page 1). The 1994 review of the Aboriginal Employment Development Policy found that Indigenous people were three times more likely to be unemployed and experience greater longer-term unemployment, the employment situation of Indigenous men had worsened in urban areas, average incomes had declined relative to the national average and there had been no reduction in welfare dependency (cited in ABS 1995b page 7). Family income levels are significantly influenced by employment levels.

The 1991 Census showed that 60% of single parent Indigenous families had incomes of less than $20,000 a year, compared to 43% on non-Indigenous single parent families. Half (51%) of two parent Indigenous families had incomes of less than $30,000 a year, compared to 20% of non-Indigenous two parent families. Yet Indigenous families are on average nearly twice the size of non-Indigenous families (Groome and Hamilton 1995 page 24).

According to the 1994 ABS survey, the proportion of Indigenous youth employed or looking for work (the labour force participation rate) was 58%. Of these, nearly half were unemployed (47%). The unemployment rate of Indigenous young people aged between 15 and 19 years was 50%, more than twice that of all Australian youth (22%) (ABS 1996 pages 16-17). The level of unemployment among Indigenous young people is an important indicator of the likelihood of coming into contact with juvenile justice agencies (Gale et al 1990, Walker and McDonald 1995).

Of those Indigenous young people who were employed, some one-third were working on CDEP projects. In rural areas, over 62% of young people employed were on CDEP projects (ABS 1996 page 17). Nearly half of the Indigenous young people surveyed by the ABS were dependent on some form of government payment as the main source of income. For 29% the main source of income was through employment. Another 21% reported no income at all (ABS 1996 page 21). 

The fact that one in five young people report no income at all is a disturbing feature likely to increase the probability of criminalisation. The Royal Commission into Aboriginal Deaths in Custody drew attention to the large number of Indigenous young people who could not find work and the apparent relationship between unemployment and contact with juvenile justice agencies (National Report Volume 1 page 378). The 1994 ABS survey found that higher rates of arrest contribute to lower employment rates in the Indigenous population, particularly for male teenagers (ABS 1995b page 2). The survey ‘established a strong negative relationship between arrest rates and subsequent employment outcomes … The analysis found that, all other things being equal, the fact of having been arrested within the previous five years prior to the survey reduced the chances of employment by half’ (ABS 1995b page 2). In other words, unemployment among those who were arrested was double the rate of those who had not been arrested. The issue is particularly important because nearly 40% of Indigenous male youth reported being arrested during the previous five years (ABS 1995b page 40). Unemployed persons, adults and youth, also reported a higher proportion of multiple arrests than those who were employed (ABS 1995a page 58).

Education
A number of submissions to the Inquiry drew attention to the relationship between past racist policies and practices in education which excluded or marginalised Indigenous children and contemporary low secondary school retention rates and low participation rates in tertiary education. Truanting and early school leaving are intimately connected with the likelihood of child welfare and juvenile justice intervention (NSW AECG submission 362 page 4, ALSWA submission 127 page 185). 

Past educational policies have contemporary consequences.

In our recent past, the education and training system … have been tools to systematically strip Aboriginal communities of not only our culture, but the living heart of our communities, our children … Schools were not only used to deny Aboriginal children a culturally appropriate education whether separated or not, they were also used as points from which Aboriginal children were ‘removed’ (NSW AECG submission 362 page 1). 

Until comparatively recently, several jurisdictions had ‘policies of not allowing Aboriginal children to attend country schools if the local whites protested. Schools which did admit Aboriginal students usually practised a strict physical segregation in classrooms. Both these practices, which highlight more obvious forms of institutional racism, occurred within the memory of many of the parents of today’s adolescents’ (Groome and Hamilton 1995 page 20). In Western Australia, where Aboriginal children were excluded from schools until the 1950s, ‘a cross generational pattern of alienation from schools as white institutions [has] resulted from the policies’ (Beresford and Omaji 1996 page 54).

During the early part of the twentieth century there was a belief, reinforced by psychologists and educators, that Indigenous students only had a limited ‘mental ability’. Although these views have been discredited as science they still ‘appear to enjoy currency among some teachers’ (Groome and Hamilton 1995 page 57). Where ‘special classes’ exist, Aboriginal students are more likely to be drafted into them on the basis of Aboriginality rather than need (Groome and Hamilton 1995 page 42). The Inquiry was told that the contemporary over-representation of Indigenous children and young people among students who are suspended or excluded from schools reflects the earlier history of educational policies towards Indigenous people (NSW AECG submission 362). 

In WA, Beresford and Omaji argue that the over-representation of Indigenous young people in school suspensions requires an investigation into a range of factors including the cultural appropriateness of the rules, the cultural compatibility of the learning styles adopted, the nature of racism in the school and social disadvantage factors. Disengagement of Indigenous children and young people from school is in itself likely to set-up young people for intervention by welfare and juvenile justice agencies either because of truanting or through the more general connection between non-attendance at school and juvenile offending (Beresford and Omaji 1996 page 69).

There is a documented lack of educational achievement by Indigenous children when measured by attendance, retention and attainment levels. Schools and teachers fail to provide Indigenous students with the educational experiences the students and their parents expect (Groome and Hamilton 1995 page xii). While there has been some increase in retention rates and participation in post-secondary education and training, the rates are still much lower than average (ABS 1995b page 2).

According to the 1994 ABS survey, 81% of Indigenous 15 year olds reported attending school compared to 92% of all Australian 15 year olds. For 16 year olds the proportions were Indigenous 57%, total 80%; and for 17 years old they were Indigenous 31%, total 60% (ABS 1996 page 13). Retention rates were higher for Indigenous girls and there were marked variations in retention rates between jurisdictions (Groome and Hamilton 1995 page 6).

No other national figures of attendance rates are available. However, South Australian figures for 1993 show that the average attendance rate for Indigenous children at primary school was 85.5% compared to 93.1% for the total population. The comparable figures for secondary school were Indigenous 78.4%, total 89.4%. The attendance rate for Indigenous girls was lower than for boys. ‘The implications of these figures are that Aboriginal students are likely to lose between two and four years of schooling through absenteeism. Rates for the total population are less than half these’ (Groome and Hamilton 1995 page 3).

Reasons for low attendance include disaffection with school, difficulties of attending school arising from poverty, family pressures particularly in single parent families, high levels of sickness and high death rates among adults and the consequent social obligations (Groome and Hamilton 1995 page 4). However, it is clear that some Indigenous students abandon school because of the pressures of racism and cultural dominance (NSW AECG submission 362 page 1, Groome and Arthur Hamilton 1995 page xii).

A significant number of [Indigenous] students, when asked to reflect on why they had left schools, said that they had felt depersonalised and had lost self-esteem under the pressure of racial harassment and ‘put downs’ from both teachers and students (Groome and Hamilton 1995 page 45).

Racism from teachers is a more difficult experience to deal with than racism from other students. The types of racism experienced include racial abuse and vilification, negative comments about families and behaviour on the basis of race, prejudicial treatment, negative personal comments about ‘extra money’ and ‘special benefits’ (Groome and Hamilton 1995 page 37).

The poor educational results for Indigenous students are also reflected in the rates of suspensions and exclusions from schools. Indigenous children and young people comprise 12% of school suspensions in New South Wales, although they make-up only 3% of the student population (NSW AECG submission page 4). Children as young as five years of age are being suspended, excluded and expelled from schools (NSW AECG submission 362 page 5).

Successful Indigenous secondary students share a strong and growing sense of identity. In these cases Indigenous identity was a source of strength to achieve.

For the majority of the Aboriginal students with whom we spoke, identity was a central issue. They were proud of their heritage and culture, especially in the face of racist attacks. These students felt that they possessed a culture in a way in which their peers did not. Most had a sense of the spiritual dimension of Aboriginality that separated their culture from others … The biggest single tangible indicator of the depth of Aboriginal identity was the virtually unanimous feeling that there should be much more Aboriginal Studies taught in schools for the benefit of all students (Groome and Hamilton 1995 page 11).

Levels of formal education among adults in Indigenous families are lower than for all Australians. The 1991 Census showed that the level of post-secondary qualification was four times lower among Indigenous adults, vocational qualifications were half the national rate and the proportion of Indigenous parents with no recognised qualifications was 26% higher than all Australians. Most Indigenous young people had left school by Year 10 or earlier. The proportion of 15 to 24 year old Indigenous young people who attained post-secondary qualifications (10%) was less than half that of all Australian youth (23%) (ABS 1996 page 14). Despite both the history of non-Indigenous educational policies towards Indigenous people and the contemporary profile of lower educational attainment, research has shown that the majority of Indigenous parents have a strong desire to see their children achieve at school (Groome and Hamilton 1995 page 26). 

Racism in education and poor educational results are directly linked to juvenile justice and welfare intervention. Early entry into the juvenile justice system is ‘nearly always associated with the alienation of the children from the education system’ (NSW AECG submission 362 page 1). The 1994 ABS survey found a relationship between education and reported arrests. ‘Rates of arrest were highest amongst persons who had left school but not completed Year 12 and had no formal qualifications compared to those who had either completed Year 12 or obtained post-school qualifications. Rates were lowest among those still at school’ (ABS 1995a page 58). The Royal Commission into Aboriginal Deaths in Custody also identified the effect of high arrest rates on poor education and problems with transition into the workforce (National Report 1991 Volume 2). 

The submission from the NSW AECG to the Inquiry noted, after drawing the links between racism, marginalisation, school exclusion and entry into the juvenile justice system, that the provision of culturally appropriate education and training is crucial to prevention of contemporary removal of Indigenous children and young people (NSW AECG submission 362 page 5).

Inter-generational effects and later removal
The effects of separation on past generations can be handed on and contribute to further separation of children from their parents today. Many submissions to the Inquiry raised this issue. It has also been noted in previous Inquiries (HREOC 1993). Both Indigenous people and non-Indigenous experts in mental health and genocide studies have commented on the inter-generational effects outlined above and these have been discussed in more detail in Part 3 of this report. 

Separation is linked with psychiatric disorders and with trauma and loss. Separation from the primary carer may render a person less secure and create later difficulties in forming relationships. Those who have been separated may carry with them a fear concerning the loss of their own children. In some cases children in successive generations have been removed. Beresford and Omaji, in an extensive analysis of Indigenous youth and involvement in the WA juvenile justice system, argue that it ‘is impossible to overstate the destructiveness of forcible removal’ (1996 page 33). Removal and institutionalisation had a number of effects including loss of opportunities to acquire cultural knowledge, lack of good models of relationships and parenting and a sense of unresolved psychological trauma. All of these factors have affected children and increased their likelihood of institutionalisation.

Many of the children of those who were removed have not been exposed to, or in some cases have rejected, the controls and authority of Indigenous culture (ALSWA submission 127 page 338).

Sean is my son. He is 16 years of age. He is in jail at the moment. He has been in and out of jail since he was 12 years of age. He does not know how much it hurts me to see him locked up. He needs his family. I need him.

When I go and visit him he tells me that he is very sorry for what he has done to me. He just cannot seem to help himself. He just cannot help getting into trouble with the cops.

‘Sean has been in and out of jail for a number of offences. He does not really know what he wants in life. It is very hard for him and for me … I have to look after five other children who are all younger than Sean …

Things have not changed that much from when I was taken away from parents and placed in a mission at Norseman. By the time I got out, my mum had died and I could not find my father. I think he had gone somewhere over east and from what I heard he hit the bottle pretty badly.

Sean’s father had also been taken away from his parents. He had gone to Mogumber Mission. He left me when Sean was only two years of age … Sean’s dad could not cope with his childhood. He was subjected to sexual abuse and made to work really hard.

No wonder Sean is the way he is. I and Sean’s dad have had our own problems and I suppose they have rubbed off on Sean.
Quoted by ALSWA submission 127 on pages 335-6.

There is clearly a direct association between removal and the likelihood of criminalisation and further instances of removal. The compounding effects of separation and criminalisation were shown dramatically in the Royal Commission into Aboriginal Deaths in Custody investigations. Forty-three of the 99 Indigenous people who died in custody had been removed from their families as children; 43 had been charged with an offence at 15 years of age or younger (National Report 1991 Volume 1 pages 5-6). 

Discussion and recommendation
Addressing the underlying issues identified in this chapter is necessary to remedy both the effects of past removal and the causes of contemporary removals.

This tragic experience [of removal], across several generations has resulted in incalculable trauma, depression and major mental health problems for Aboriginal people. Careful history taking during the assessment of most individuals and families identifies separation by one means or another - initially the systematic forced removal of children and now the continuing removal by Community Services or the magistracy for detention of children, rather than the provision of constructive support to families and healing initiatives generated from within their own communities. The process has been tantamount to a continuing cultural and spiritual genocide both as an individual and a community experience (submission 650 pages 4-5).

A recent review of the South Australia juvenile justice system noted, 

Because of their high unemployment rates, low educational levels, low family incomes, etc., Aboriginal youth are at higher risk of offending in the first place. The introduction of far-reaching social justice strategies designed to address the inequitable position of Aboriginal people within the South Australian (and Australian) community are clearly required. But although this was one of the key recommendations of the Royal Commission into Aboriginal Deaths in Custody, the extent to which this is occurring seems to be limited (Wundersitz 1996 page 205).

Social justice measures taken by governments should have special regard to the inter-generational effects of past removals. Parenting skills and confidence, the capacity to convey Indigenous culture to children, parental mental health and the capacity to deal with institutions such as schools, police, health departments and welfare departments have all been damaged by earlier policies of removal.

Unless these conditions are altered and living conditions improved, social and familial disruption will continue. Child welfare and juvenile justice law, policy and practice must recognise that structural disadvantage increases the likelihood of Indigenous children and young people having contact with welfare and justice agencies. They must address this situation.

The denial of social justice violates the basic citizenship rights of Indigenous people in Australia. Citizenship rights include rights to standards of health, housing, education and equality before the law enjoyed by other Australians.

There is growing concern about the abject failure of governments – state, territory and commonwealth – to adequately address the rights of Australia’s Indigenous people. All the reports on Aboriginal services and funding are indicating that the situation for Aboriginal people is not improving. Health, education, housing, water, infrastructure, and roads are all basic citizenship rights of Australians, yet Indigenous people are not receiving an equal level of service outcomes (Northern Land Council submission 765 page 16).

Earlier inquiries have made detailed recommendations relating to social justice. Commonwealth, State and Territory governments have committed themselves to implement the recommendations of the Royal Commission into Aboriginal Deaths in Custody addressing social justice. The Inquiry commends those recommendations and draws attention to the link between the appalling living conditions in many Indigenous communities and the need for a social justice response built on the right to self-determination.
The previous Commonwealth Government committed itself to a social justice package as the third tidr of response to the High Court’s decision in Mabo (No 2).3 The Council for Aboriginal Reconciliation, ATSIC and the Aboriginal and Torres Strait Islander Social Justice Commissioner each prepared a report on how to achieve social justice for Indigenous Australians. The Cape York Land Council urged the Inquiry to ‘strongly advocate’ to government the implementation of a social justice package (submission 576; see also Northern Land Council submission 765 pages 3 and 16).

Indigenous groups argued that Aboriginal and Torres Strait Islander social justice should not be seen simply as a package of goods and services to be delivered to their communities. ‘It entails accepting the rights of Indigenous peoples and establishing processes which translate abstract principles into the actual enjoyment and exercise of rights’ (Dodson 1995 page 97). These rights are both individual human rights and collective rights that arise from the status of Aboriginal and Torres Strait Islander peoples as Indigenous peoples. They include the right of Indigenous peoples to self-determination.

Social justice
Recommendation 42: That to address the social and economic disadvantages that underlie the contemporary removal of Indigenous children and young people the Council of Australian Governments,
1.	in partnership with ATSIC, the Council for Aboriginal Reconciliation, the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner and Indigenous community organisations dealing with Indigenous family and children’s issues,  develop and implement a social justice package for Indigenous families and children, and
2.	pursue the implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody which address underlying issues of social disadvantage.

Endnotes
1	A homeland has been defined as an area with which an Indigenous young person recognise an ancestral or cultural links.
2	For example, see the National Report of the Royal Commission into Aboriginal Deaths in Custody, the Toomelah and Mornington reports of the Human Rights and Equal Opportunity Commission and the Aboriginal and Torres Strait Islander Social Justice Commissioner’s Fourth Annual Report.
3	The other two tiers of response were the Commonwealth Native Title Act  and the Aboriginal Land Acquisition Fund.

26 		A New Framework
An entrenched pattern of disadvantage and dispossession continues to wreak havoc and destruction in Indigenous families and communities. This situation has been described in the preceding chapters of this Part. State and Territory legislation, policy and practice in the areas of child welfare, care and protection, adoption and juvenile justice do not comply with the evaluation criteria established by the Inquiry (see Chapter 15).

They do not comply with the right to self-determination as applied to Indigenous peoples. In general terms, they have been developed upon an assumption that consultation and participation in service delivery are adequate responses to Indigenous needs. Even consultation has been lacking in many areas of legislative change and policy development in issues directly affecting the likelihood of removal of Indigenous children and young people from their families and communities.

The Secretariat of Aboriginal and Islander Child Care (SNAICC) submitted that the ‘critical principle of the right to self-determination has been all but ignored and swept under the carpet in relation to Aboriginal families and children’ (submission 309 page 31). According to SNAICC, respect for self-determination has been stronger in other areas of policy such as health and education than in relation to families and children. 

State and Territory policy and practice are often affected by on racial discrimination, in particular, by indirect discrimination. The evidence presented to the Inquiry indicates that Indigenous children and young people do not receive equal treatment before the law. The juvenile justice system produces massive levels of criminalisation and incarceration of Indigenous youth. Indigenous children are grossly over-represented at each stage of child welfare intervention. Their level of over-representation increases as the degree of intervention increases, with the greatest over-representation being in out-of-home care. The failure to ensure equality before the law breaches article 26 of the International Covenant on Civil and Political Rights. It breaches article 5 of the International Convention on the Elimination of All Forms Racial Discrimination which requires States to prohibit and eliminate racial discrimination. It breaches the Racial Discrimination Act 1975 (Cth) which implements the provisions of the Convention. Article 2 of the Convention requires state parties to implement policies to eliminate racial discrimination. These policies include reviewing government legislation and practices which have the effect of creating or perpetuating racial discrimination.

Cultural renewal is another evaluation criterion established by the Inquiry. The continuing removal of Indigenous children and young people from their families and communities interferes with the enjoyment of culture, religion and language. The failure to remedy the disadvantage that leads to removal demonstrate a failure to ensure the conditions for the exercise of the right to enjoyment of cultural life and for cultural renewal.

The Aboriginal and Torres Strait Islander Social Justice Commissioner has concluded that Australian governments have been guilty of human rights abuses in relation to Indigenous children and young people and that the gross over-representation of Indigenous youth in juvenile institutions raises issues under the Convention (Dodson 1995 pages 35-38). Submissions and evidence to the Inquiry support this view.

State and Territory legislation, policy and practice violate existing or emerging human rights norms in relation to young people. Most importantly, they do not comply with the fundamental principle of eliminating the unjustified removal of Indigenous children and young people from their families and communities. These principles reflect the minimum requirements against which existing legislation, policy and practice must be evaluated.

The system of legislation, policy and service delivery dealing with children in this country is itself a structural barrier to the rights of Aboriginal children. The fragmentation of the fields of children’s services, broadly speaking, is subverting and undermining the rights of Aboriginal and Torres Strait Islander children. Unless we take a national approach to legislative and policy matters regarding Aboriginal children, the situation will remain intolerable and hopelessly inadequate to deal with the present crises and certainly will be no closer to recognising the ‘right of self-determination’ of Aboriginal and Torres Strait Islander children (SNAICC submission 309 page 34).

Existing systems have failed miserably. Nowhere is this failure more profoundly reflected than in the inability of States and Territories to reduce the number of Indigenous children placed in care, held in police cells and sentenced to detention centres. 

The starting point for a new framework is the right to self-determination. For this reason this right is discussed at some length. The framework is also built upon Australia’s other human rights commitments, especially those conferring rights on Indigenous peoples and on children and young people generally.

The Inquiry supports the eventual transfer of responsibility for children’s well-being to Indigenous peoples and proposes a framework for negotiating autonomy measures (Recommendation 43). It would be inappropriate and untimely for the Inquiry to pre-empt the results of these negotiations by outlining in this report the features of a self-government scheme.

Evidence to the Inquiry and substantial research findings establish conclusively the need for a fundamentally different approach if the objective of eliminating unjustified and unnecessary removal of Indigenous children from their families and communities is to be achieved. This goal is consistent with article 6 of the draft Declaration on the Rights of Indigenous Peoples.

Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and to full guarantees against genocide or any other act of violence, including the removal of indigenous children from their families and communities under any pretext.
Self-determination
The right to self-determination
Independent states long denied that their Indigenous peoples enjoy the recognised international right of all peoples to self-determination. Self-determination is a collective right exercised by peoples. States preferred to describe their Indigenous populations as minorities, reserving the term ‘peoples’ to describe nations and emerging post-colonial nations. However, according to the Chairperson of the United Nations Working Group on Indigenous Populations, Professor Daes, ‘Indigenous groups are “peoples” in every political, social, cultural and ethnological meaning of this term’ (quoted by Coulter 1995 on page 131). Indigenous leaders in Australia have also argued that Indigenous peoples in Australia are ‘peoples’ within the meaning of the term (Dodson 1993).

Once it is accepted that Indigenous peoples have a right of self-determination, debate surrounds the question what that right involves.  Article 1 of the International Covenant on Civil and Political Rights defines the right of self-determination as involving the free choice of political status and the freedom to pursue economic, social and cultural development. The Covenant is binding on Australia. 

Article 27 of the Covenant provides that ‘persons belonging to ... minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language’. Many international legal scholars consider that article 27 implicitly recognises a right to self-government or autonomy for Indigenous peoples and other minorities when that is necessary to protect their cultural distinctiveness. Some scholars have gone further and argued that customary international law recognises a right of cultural self-determination for Indigenous peoples (Iorns 1996 page 8). One aspiration Indigenous peoples have for the draft Declaration on the Rights of Indigenous Peoples is that it will put beyond doubt their right of self-determination.

‘[The] free choice of political status carries no necessary implications’ (Dodson 1993 page 41). Self-government, regional autonomy and integration into an existing nation state are all possible exercises of the right. Coulter summarises what self-determination means for some Indigenous peoples.

It is clear that Indigenous leaders mean self-determination to include freedom from political and economic domination by others; self-government and the management of all their affairs; the right to have their own governments and laws free from external control; free and agreed-upon political and legal relationships with the government of the country and other governments; the right to participate in the international community as governments; and the right to control their own economic development (Coulter 1995 page 131).
Self-determination is only likely to involve secession from an existing nation state in exceptional circumstances.  Professor Daes has stated that self-determination for Indigenous peoples,

... means that the existing State has the duty to accommodate the aspirations of Indigenous peoples through institutional reforms designed to share power democratically. It also means that Indigenous peoples have the duty to try to reach an agreement, in good faith, on sharing power within the existing State, and to exercise the right to self-determination by this means and other peaceful ways, to the extent possible ... Furthermore, the right of self-determination of indigenous peoples should ordinarily be interpreted as the right to negotiate freely their status and representation in the State in which they live (quoted by Iorns 1996 on page 13).

The Working Group developed the draft Declaration on the Rights of Indigenous Peoples and governments are now discussing it through the United Nations Commission on Human Rights. ‘The purpose of the present standard setting is to recognise the specificity of a numerous group which has been largely ignored by the international community. The draft declaration is essentially seeking to protect the collective rights of Indigenous peoples’ (Burger and Hunt 1994 page 411). Although it will not be binding, the Declaration is significant because it has been drafted in negotiations with Indigenous peoples’ representatives and reflects the aspirations of Indigenous peoples. It has been referred to as ‘an historic statement of Indigenous people’s rights’ (Coulter 1995 page 123). Aboriginal and Torres Strait Islander peoples played an important part in the development of the draft Declaration, as did the Australian Government. It reflects more fully than any other international instrument the current goals of Indigenous peoples. 

The draft Declaration affirms that Indigenous peoples have the right to self-determination. ‘[I]t may be said without exaggeration that all Indigenous peoples, certainly those which have participated in the drafting of the declaration, consider this right fundamental’ (Burger and Hunt 1994 page 412). Other provisions in the draft Declaration apply this fundamental right to particular areas of activity. They affirm ‘the right of Indigenous people to control matters affecting them’ (Coulter 1995 page 128). 

Article 4 provides,

Indigenous peoples have the right to maintain and strengthen their distinct political, economic, social and cultural characteristics, as well as their legal systems, while retaining their rights to participate fully, if they choose, in the political, economic, social and cultural life of the State.

Article 31 sets out the extent of self-governing powers of Indigenous peoples.

Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.

Articles 19, 20 and 23 recognise a right to autonomy or self-government and control over decisions affecting them, including a right to maintain and develop Indigenous decision-making institutions and a right to determine and develop social and economic programs affecting them and to administer those programs through Indigenous institutions. 

In negotiating the draft ‘practically no Indigenous representatives have spoken of a right to secede from an existing country’ (Coulter 1995 page 131). According to the Aboriginal and Torres Strait Islander Social Justice Commissioner, in the Australian context ‘[a] threat to Australia’s territorial integrity is not a necessary concomitant of self-determination’ (Dodson 1993 page 52). Indeed, international law specifically rejects interference in the domestic affairs of nation states or in matters which interfere with the existing territorial integrity of nation states. ‘[A] people exercising their right to self-determination may choose from – and may even be confined to – a range of possible outcomes other than “independence”’ (Nettheim 1988 page 119). 

Governments expressed concerns during the negotiations about the relationship between self-determination and secession. Canada asserted that Indigenous self-determination ‘could not be used to justify any action that would dismember or impair … the political unity of sovereign democratic states’ but it accepted a right to self-determination within those boundaries. 

The Government of Canada accepts a right of self-determination for Indigenous peoples which respects the political, constitutional and territorial integrity of democratic states. In that context, exercise of the right involves negotiations between states and the various Indigenous peoples within those states to determine the political status of the Indigenous peoples involved, and the means of pursuing their economic, social and cultural development (Canadian Government 1996 page 2).
Australia played an important role in the development of the draft Declaration. Its comments on self-determination in 1995 echoed those of Canada in recognising the right.

[It means] Aboriginal control over the decision-making process as well as control over the ultimate decision about a wide range of matters including political status, and economic, social and cultural development. It means Aboriginal people having the resources and capacity to control the future of their own communities within the legal structure common to all Australians…
Indigenous peoples, like all other peoples in independent states with representative government, do not have a right of secession, although they do have a right of self-determination (quoted by Iorns 1996 on page 15).

Australia sees the right of self-determination as an evolving right. It involves more than just the right of equal participation in national affairs but also includes ‘preservation of culture, distinct identity and language, together with a power to take decisions over their own affairs’. In practice ‘the extent of that right remains a matter of political debate, particularly where autonomy or self-government for our Indigenous people may be seen to conflict with the rights of others within the Australian community or with overall governmental responsibility to achieve particular outcomes’ (quoted by Iorns 1996 on page 15).

Clearly, the implementation of self-determination is important for juvenile justice, child welfare, adoption and family law matters. It is the principle grounding a right for Indigenous people to exercise control over matters directly affecting their children, families and communities. The Indigenous perspective on self-determination provides for the development of control over these areas of social life through processes which may involve some form of autonomy or self-government. Australia’s position internationally has certainly not precluded these developments. State governments too have formally supported a broad view of self-determination. For example, the Queensland Government told the Inquiry,

The essence of self-determination in this context [juvenile justice and child welfare] is an understanding that only Aboriginal people can find solutions to the problems which confront them, and that Aboriginal people have the right to make decisions concerning their own lives and their own communities and the right to retain their culture and develop it (final submission page 18).

Implementing self-determination in Australia
The Indigenous right to self-determination has been slowly accepted over the last 25 years. Although restricted interpretations of the right have applied in practice, nevertheless self-determination has been seen as critical in various State, Territory and Commonwealth laws and policies. 

However, transfers of power are generally limited in scope and accompanied by resourcing of Indigenous organisations which is inadequate to allow them to fulfil their functions. Many Indigenous communities have demanded the right to exercise self-determination in the provision of services to their communities while many others already do so with limited resourcing and powers. No community has jurisdiction over matters so central to their survival as child welfare and juvenile justice.

Self-determination was a key component in the development of the Commonwealth approach to land rights legislation during the 1970s and underpinned the development of specific legislation covering Indigenous councils and associations. The establishment of ATSIC in the late 1980s and the more recent establishment of the Torres Strait Regional Authority (TSRA) further recognised the importance of self-determination in Indigenous affairs.

Discussing greater autonomy for the Torres Strait, the Chairperson of the TSRA, Gaetano Lui, stated, ‘the central force behind this plan [for the TSRA] is our strong commitment to empowering our people to determine their own affairs. It is about controlling our own destiny and putting power back in the hands of our people’. The Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron, replied, ‘it is a view that fits well with the Government approach to Indigenous affairs’ (Herron 1996 page 5).

States and Territories have also transferred some decision-making powers to Indigenous peoples. Hundreds of Indigenous corporations have been established across the country to provide governmental-type services to their communities. Aboriginal and Torres Strait Islander child care agencies are among these. In addition, Indigenous councils with similar powers to local governments have been established in the Northern Territory and Queensland. In South Australia Anangu Pitjantjatjaraku, an Aboriginal corporation established under the Pitjantjatjara Land Rights Act 1982 (SA), is recognised as a local governing body. Land rights legislation in some other jurisdictions have provided for the exercise of some governmental-type powers.

In WA legislation authorises the recognition of Aboriginal community councils for the purpose of making community by-laws (Aboriginal Communities Act 1979). Some 29 communities have by-law making powers, some of which relate to law and order. Recognition of community councils under the Act and approval of by-laws are at the discretion of the Minister.

In the NT Indigenous community councils exercise local government powers under the ‘community government’ provisions of the Local Government Act. Aboriginal local governing bodies recognised for local government funding purposes have also been established under NT and Federal incorporation legislation.

Councils on Aboriginal land in the Northern Territory are severely limited in what they can do and have to follow the rules and regulations of the NT government. The NT Government’s legislation for community Government is a white-mans system and is in direct conflict with the rights of Traditional Land Owners ... He said that what the Northern Territory and Commonwealth governments were doing is to ‘manage’ Aboriginal people but not giving them real control. Aboriginal Councils are more accountable to the Northern Territory and Commonwealth Governments than they are to their own communities (Kumantjay Ross quoted by NT Aboriginal Constitutional Convention Report 1993 on pages 19-20).
Some decision-making power was transferred to Indigenous communities in Queensland by the Community Services (Aborigines) Act 1984 and the Community Services (Torres Strait) Act 1984. Community councils are primarily responsible for local government services with some additional functions such as community police, community courts and management of natural resources. During the last few years the majority of councils have adopted model by-laws creating a range of offences relating to assault, property damage and alcohol-related conduct (Queensland Government final submission page 56).

There are practical and legislative limitations on the power of Queensland community councils including in the administration of justice. Community police suffer from poor training, poor facilities and high turnover rates. ‘Community courts are only operating on a handful of communities at present. Their usefulness is restricted by current requirements that they operate strictly along the lines of a magistrates’ Court’ (Queensland Government final submission page 56). Although the by-laws passed by community councils apply to juveniles, State police typically charge juveniles under other legislation. At present ‘community police have no jurisdiction to enforce offences against juveniles and community courts have no jurisdiction to hear offences against juveniles’ (Queensland Government final submission page 61). There are currently no provisions to deal with child welfare matters.

The limitations of the legislative framework under which the community councils operate in Queensland was the focus of the Legislation Review Committee (1991). The Committee found that there was wide Indigenous support for communities exercising greater autonomy than was currently available and that the legislation does not provide a ‘culturally appropriate structure for government’ (page 1). The Committee recommended that legislation should permit Indigenous communities to develop constitutions to suit their own conditions. These constitutions could specify the type of government structure most suitable for the community and the powers the community would exercise. Communities could choose to undertake government functions for health, education and law (including the recognition of customary rights, laws and traditions and the administration of justice, police and corrections).

In 1996 the Queensland Government introduced the Alternative Governing Structures Program (AGSP) to assist communities develop decision-making structures and processes by providing funds for the development of community-based plans. The Office of Aboriginal and Torres Strait Islander Affairs assists communities in negotiating with the relevant body for their plans to be implemented (Office of Aboriginal and Torres Strait Islander Affairs 1996a). One of the strengths of the AGSP is that it applies to all Aboriginal and Torres Strait Islander communities in Queensland, including urban and semi-urban communities, and is not limited to those operating under the Community Services Acts 1984 (Office of Aboriginal and Torres Strait Islander Affairs 1996a pages 13-14).
The organisers of the NT’s Aboriginal Constitutional Convention prepared a document on Aboriginal self-government which outlined some of the definitional issues and areas of potential responsibility.

1.	What is Aboriginal self-government?
	A process of redrawing the ancestral domain through the right of Aboriginal self-government. This is a fundamental human right of Indigenous people.
	The inherent right of Aboriginal people to govern themselves is not beyond the capacity of the Federal Government to recognise and demarcate. It is simply creating a fairer division of the power and sovereignty…
 
 4.	What does Aboriginal self-government mean?
	• Greater Aboriginal self-determination and autonomy;
	• Owning the design of decision making structures that are appropriate to the local situation, needs, and culture;
	• Control and authority over internal affairs;
	• Setting own priorities and determine policy, program design;
	• Selectively taking on the delivery of services eg. education, child welfare, social services, health, policing and justice, land and resource planning and environment protection (Reynolds 1996 pages 141 and 143).
 
Australian governments have not fully considered the relationship between Indigenous self-determination and the federal distribution of powers. However, many Indigenous organisations have experience of local control and regional co-operation.

Aboriginal local governing bodies generally face a larger struggle to achieve equitable conditions for their communities and consequently the need for regional unity is increased. However because of the cultural value placed on local control, the regional unity is achieved without compromising the fundamental autonomy that traditional land owners have over their traditional areas.

The model is a micro-scale of federal-style distribution of powers between levels of authority. Aboriginal local governing bodies have considerable experience in making such a model work (Pitjantjatjara Council Inc 1994 page 41). 

Implementing self-determination in other countries
A number of submissions to the Inquiry (ALSWA submission 127, SNAICC submission 309, Anglican Church Social Responsibilities Commission submission 525) and research commissioned by the Inquiry (Iorns 1996) drew attention to the development of Indigenous self-determination models in other countries. In these examples, self-determination for Indigenous peoples has involved the complete or partial transfer of jurisdiction for the administration of juvenile justice and child welfare. The devolution of self-government powers to Indigenous peoples in Canada has occurred in the absence of federal government recognition of an obligation at international law but rather in recognition of the desirability of the transfer in the interests of Indigenous survival and national well-being (Iorns 1996 page 21).

United States
The decisions of Chief Justice John Marshall during the first half of the nineteenth century recognised that Indian tribes have an inherent right of tribal sovereignty and are entitled to self-government. In 1832 in Worcester v Georgia the Supreme Court struck down a series of laws enacted by the State of Georgia which would have had the effect of nullifying the Cherokee Nation’s constitution and its customary law. It affirmed that, although no longer completely sovereign, Indian nations retained their inherent right to self-government. Since then Indian governments have been entitled to exercise legislative, executive and judicial powers, subject to the powers of the US Federal Government. Most Indian nations have some land on which to base their government structures and authorities (Iorns 1996 page 22). 

Two developments of particular interest to this Inquiry are the Indian Child Welfare Act and tribal courts. Commonwealth legislation along the lines of the Indian Child Welfare Act 1978 has been recommended to the Inquiry in numerous submissions (see for example SNAICC submission 347, Anglican Social Responsibilities Commission submission 525 pages 9-11).

The Indian Child Welfare Act 1978 is a Federal Act passed by the US Congress in response to the American Policy Review Commission’s recommendations. The Commission was established by Congress in the mid-1970s to examine, among other matters, current law and practice as it affected Indian people. The Task Force’s Final Report outlined the need for Indian child welfare legislation. 

The Task Force Report cites a frequently asked question: since both Indian and non-Indian systems act in the best interests of the child, what difference does it make as to who makes decisions about Indian children. The answer to the question is then set out in the Report. The difference is that these decisions are inherently biased by the cultural setting of the decision maker … when decisions are made by non-Indian authorities (quoted by Thorne undated on page 1). 

The Task Force noted the discretionary nature of child welfare interventions and the cultural judgments explicitly and implicitly made by non-Indian welfare officers when intervening in Indian families (Thorne undated page 3). 

In the hearings which preceded passage of the Indian Child Welfare Act, the Congressional Committee found that Indian children are the most vital resource for the continued existence of Indian Tribes and therefore must be protected. It also found that an alarmingly high proportion of Indian families were broken up by the often unwarranted removal of children by public and private agencies and that an alarmingly high proportion of these children were placed in non-Indian homes and institutions. ‘States have failed to recognise the tribal, social, and cultural standards prevailing in Indian communities and families. The Act was passed to remedy these problems’ (Thorne undated page 7). 

The Indian Child Welfare Act 1978 gives exclusive jurisdiction to tribal courts in child welfare proceedings about Indian children who live on or have their permanent home on a reservation. Congress can make an exception to this rule by giving jurisdiction to a State Court. State courts have joint jurisdiction with tribal courts over welfare matters which involve Indian children who do not have permanent residence on a reservation. State courts must transfer jurisdiction to tribal courts if this is requested by the parent, Indian custodian or Tribe unless one parent objects, the tribe has declined to handle the matter or the State court finds ‘good cause’ not to transfer the case (section 101). 

If a State court has jurisdiction over a welfare matter pertaining to an Indian child the Indian Child Welfare Act sets out a number of safeguards for that child. The Indian custodian of the child and the child’s Tribe can intervene and participate at any point in the proceedings and all parties have a right to examine all reports and documents filed with the court (section 102). Parties seeking orders have to demonstrate to the court that active efforts have been made to provide remedial services. The party seeking a care order has to notify the parent, Indian custodian and the child’s Tribe of the proceedings (section 102(d)). The Indian custodian or Indian parent has a right to court-appointed counsel (section 102(b)). Voluntary relinquishment must be in writing and a judge must be satisfied that the terms of the agreement are understood by the parent or Indian custodian. Voluntary consent to foster care arrangements can be withdrawn at any time (section 103(a) and (b)). 

Section 105 incorporates an Indian Child Placement Principle. An emergency removal of a child is permitted where the child is in imminent physical danger (section 112). In these circumstances either the case must be referred expeditiously to the tribal court or the child must be returned home.

The most litigated and debated provisions of the Indian Child Welfare Act relate to the shared jurisdiction between State and tribal courts over Indian children who live off reservations. In Mississippi Band of Choctaw Indians v Holyfield (1989) both parents were Indians and residents of the reservation. The mother gave birth to twins in a town 200 miles from the reservation. The parents both signed a consent to adoption form and 31 days after the birth a Final Decree of Adoption was issued by the Chancellor of the Court of Harrison County. No reference was made to the children’s Indian status anywhere in the proceedings. The Tribe sought an order to nullify the adoption decree on the basis that under the Indian Child Welfare Act it had exclusive jurisdiction over the child. In a one page judgment the Supreme Court of Mississippi affirmed the adoption on the basis that the mother had intentionally given birth off the reserve and neither parent had lived on the reserve after the birth. On appeal the US Supreme Court found that the parents had been domiciled on the reservation at the date of birth and so the tribal court had had sole jurisdiction. The Supreme Court noted that, because three years had passed since the adoption, nullification of the adoption and separation of the twins from their adoptive parents would cause much pain. Nevertheless the Supreme Court declined to determine the matter holding instead that ‘we must defer to the experience, wisdom, and compassion of the tribal courts to fashion an appropriate remedy’. The case was sent to the tribal court for determination.

The Supreme Court commented, 

Tribal jurisdiction under s1911(a) was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of the Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians ... In addition, it is clear that Congress’ concern over the placement of Indian children in non-Indian homes was based in part on evidence of the detrimental impact on the children themselves of such placements outside of their culture (page 105 reproduced in The Indian Child Welfare Handbook undated).
 
The Supreme Court of Utah had encapsulated much of the debate in an earlier decision cited with approval by the US Supreme Court in Holyfield.

This relationship between Indian tribes and Indian children domiciled on the reservation finds no parallel in other ethnic cultures found in the United States. It is a relationship that many non-Indians find difficult to understand and that non-Indian courts are slow to recognise. It is precisely in recognition of this relationship however, that the ICWA designates the tribal court as the exclusive forum for the determination of custody and adoption matters for reservation-domiciled Indian children, and the preferred forum for non domiciliary Indian children (In re Adoption of Halloway 1986 pages 969-970).

Tribal courts were first established in 1883 as an adjunct to the process of assimilation to outlaw customary law and ‘civilise’ Indians. The tribal courts which operate today derive from the Indian Reorganisation Act 1934. Indian tribes were authorised to establish tribal constitutions and governments and to enact laws covering internal matters including law and order. The tribal courts could be established as part of a tribal constitution or as a part of a law and order code.1

Some 108 Indian tribes operate tribal courts, ranging from small tribes of 65 members and courts that deal with three cases annually to the Navajo nation of nearly 200,000 members and a judicial system that handles 40,000 cases annually. Not surprisingly the court systems vary dramatically ‘depending upon the population of the reservation they service, the demand for services, the funding available, the extent of jurisdiction possessed by the courts, and the philosophical orientation of the tribal governments’ (Canadian Royal Commission on Aboriginal Peoples 1996a page 191).

Tribal courts have broad jurisdiction, including criminal law. However, tribal criminal codes cover essentially offences falling within a summary jurisdiction. Major offences, including homicide, rape and drug offences, must be dealt with in a federal court. The Indian Civil Rights Act 1968 restricts the operation of tribal courts by limiting the penalties they can impose to a maximum fine of $US5,000 or one year in prison or both. That Act also imports into tribal law the protections of the US Bill of Rights including criminal law protections with due process guarantees.

The US tribal court system was extensively reviewed by the Manitoba Aboriginal Justice Inquiry (1991) and the Canadian Royal Commission on Aboriginal Peoples (1996a). Clear advantages and disadvantages were catalogued. On the negative side, partly as result of the way they were established, the tribal courts and the codes they enforce are not uniquely Indian. Tribal courts were a form of dispute resolution imposed by the federal government (Canadian Royal Commission on Aboriginal Peoples 1996a page 184). At the same time, the tribal court system is not simply a static creation of the federal government. It is a dynamic system which in some instances has been changing to incorporate Indigenous cultural values. The limits imposed by the federal government have not restricted the development of Indigenous justice systems. For instance, the Navajo Nation has undertaken a program over the last decade to introduce Navajo common law as the law of preference in written opinions, as a means of interpretation of codes and as the source of principles and rules. Traditional justice methods have been adapted through the introduction of a Navajo Peacemaker Court (Canadian Royal Commission on Aboriginal Peoples 1996a pages 187-191).

While acknowledging shortcomings of the tribal court system, the Commissioners of the Manitoba Aboriginal Justice Inquiry noted that American Indian tribes were committed to the preservation and expansion of their court system. The system was perceived by tribal members to be,

… more understanding of their situation, more considerate of their customs, their values and their cultures, more respectful of their unique rights and status, and likely to be more fair to them than the non-Aboriginal justice system has been. In such a situation, where the court has the inherent respect of accused and the community, the impact and effect of its decisions will be that much greater …

All this leads us to conclude that tribal courts clearly have played a vital role in meeting the needs of American Indians for a fair, just and culturally acceptable legal system  (1991 Volume 1 pages 296 and 298).
 
Canada
The Canadian Government has recognised Aboriginal autonomy and self-government and has made specific settlements with different Aboriginal First Nations including land claim settlements and self-government agreements. The Canadian Government announced in 1995 that it would negotiate with Aboriginal First Nations to define the exact powers to be transferred, the jurisdictions to be exercised and the nature of fiscal responsibilities (Iorns 1996 page 23).

The devolution of child welfare and criminal justice, including juvenile justice, to Aboriginal nations has occurred to some extent in a number of areas. A number of Aboriginal self-government agreements which have been negotiated, including four Yukon agreements, have explicitly included jurisdiction over child welfare matters. 

A joint approach to criminal justice issues is being developed in some Aboriginal nations (Iorns 1996). As a result of the Yukon self-government agreements, the Yukon First Nations will not unilaterally exercise power over the administration of justice for at least ten years, during which time power can only be exercised subject to a separate joint justice agreement (page 25). A different approach has been taken by the Sechelt Peoples who were granted self-government under Federal legislation. The Sechelts have been granted almost total control of their affairs including their own constitution. The arrangement attempts to replace externally imposed authority with ‘internally legitimised tribal authority’ (ALSWA submission 127 page 221).

The Canadian Royal Commission on Aboriginal Peoples considered at length the relationship between Indigenous self-determination and the development of native criminal justice systems including juvenile justice. The Commission concluded,

The Aboriginal right of self-government encompasses the right of Aboriginal nations to establish and administer their own systems of justice, including the power to make laws within the Aboriginal nation’s territory ...

The right to establish a system of justice inheres in each Aboriginal nation. This does not preclude Aboriginal communities within the nation from sharing in the exercise of this authority. It will be for the people of each Aboriginal nation to determine the shape and form of their justice system and the allocation of responsibilities within the nation (1996a page 177).
The Royal Commission report does not offer a ‘blueprint’ by pre-determining or circumscribing the shape of Aboriginal justice systems. The Commission recognised that Aboriginal justice initiatives have tended to be small scale and developed on an ad-hoc basis. ‘Often these initiatives fight the same battles over and over again with different orders of government and with differing results and almost always operating with limited budgets and under the shadow of a pilot program mentality’ (page 179). In addition the Royal Commission recognised that different Aboriginal nations and communities will have different preferences and timetables for change. 
Some may wish to give priority to justice processes that take place outside the courtroom; others may see the development of an Aboriginal court system as more responsive to the problems facing them; yet others may wish to proceed along both paths simultaneously to ensure that the system works in an integrated and complementary fashion. It is not our purpose to predetermine or circumscribe choice but rather to create conceptual and legal space for these developments to occur (page 197).

The Royal Commission was primarily concerned with providing a framework for the development of Aboriginal justice systems on a more comprehensive basis. It therefore considered in detail the jurisdictional basis for establishing Aboriginal justice systems (pages 219-257). It found that Aboriginal people’s inherent right of self-government is recognised and affirmed in section 35 of the Canadian Constitution Act 1982. The right is not absolute and is exercised within the framework of Canada’s federal system. It encompasses the right of Aboriginal nations to establish and administer their own systems of justice including the power to make laws within the Aboriginal nation’s territory (page 310).

The Royal Commission concluded that ‘Aboriginal jurisdiction in relation to justice should be treated as a right; the exercise of that right should, however, be progressive and incremental, dependent upon the choice, commitment and resources of each Aboriginal nation’ (page 257). The 18 recommendations on criminal justice provide a framework for facilitating the development of an Aboriginal jurisdiction. The first of these is that,

Federal, provincial and territorial governments recognize the right of Aboriginal nations to establish and administer their own systems of justice pursuant to their inherent right of self-government, including the power to make laws, within the Aboriginal nation’s territory (page 312).

Other recommendations provide that Aboriginal justice systems should have a choice concerning the types of matters they will determine and which offenders will come before them. Offences and offenders not dealt with by the Aboriginal justice system would be dealt with by the non-Aboriginal justice system. Non-Aboriginal residents within Aboriginal jurisdictions should have a choice of where their case will be heard except if the offence is unique to the nation’s system and is designed to protect cultural values.

The Royal Commission recommended that Aboriginal justice systems should include an appellate structure with a pan-Canadian Aboriginal appeal body. Appeals from that body would be to the Canadian Supreme Court. There should be negotiation between federal and provincial governments and Aboriginal nations for agreements to govern the nature of Aboriginal justice jurisdiction, the establishment of Aboriginal charters to supplement the Canadian Charter of Rights and Freedoms and the need to prioritise the interests of Aboriginal women and children in the development of Aboriginal justice systems.
Recommendations
In Canada and the United States governments have shown their willingness to depart from the culture of control which has characterised relationships between Indigenous peoples and colonial societies. The change in attitudes in the Canadian context is evident in the inter-governmental negotiations between Indigenous peoples on a regional basis. The governments of Canada through creative and inclusive federalism have recognised Indigenous Canadians’ jurisdiction in a broad range of areas including those affecting children’s well-being. They have also acknowledged and made a commitment to negotiating self-government on a local and regional basis with Indigenous peoples. 

Given the vastly different circumstances of Aboriginal peoples throughout Canada, implementation of the inherent right cannot be uniform across the country or result in a ‘one-size-fits-all’ form of self-government (Government of Canada 1995 page 4). 

The Canadian Government’s range of negotiation options include Indigenous Canadians living on and off a land base. 

Metis and Indian groups living off a land base have long professed their desire for self-government process that will enable them to fulfil their aspirations to control and influence the important decisions that affect their lives (Government of Canada 1995 page 19).

In contrast to the Canadian experience, Australian ‘self-governance’ models have been established within paternalistic legislative frameworks in which limited powers are delegated and functions are performed with inadequate resources, often in adverse circumstances.

Self-determination and responsibility for children
Self-determination can take many forms. It could involve a regional agreement and/or the establishment of regional authorities.2 Alternatively, it may take the form of community constitutions. It can cover a range of areas including matters dealing with children and juveniles.3 There are many possibilities from the exercise of local government style powers through to the development of State-like powers within the federal structure. 

The Northern Land Council provided the Inquiry with a view of self-determination which implied full self-government.

By self-determination we mean far more than the forms of quasi-control allowed through certain government institutions such as ATSIC or community government councils in the NT. This may include special funding arrangements with Commonwealth, states and territory governments (submission 765 page 16).
Some communities or regions may see the transfer of jurisdiction covering juvenile justice, welfare and adoption as central to exercising self-government. Others may wish to work within the existing structure modified to provide legislative recognition of the right of Indigenous organisations to have the key role in the decision-making processes. The level of responsibility for children which Indigenous communities wish to take must be negotiated by the communities themselves. 

Many submissions to the Inquiry supported this approach.

Self-determination [is] the right of Aboriginal people to build mechanisms within our own communities for dealing with a range of issues that everybody else deals with at the moment on our behalf.

Even if a child commits an offence within the city area or the community, we are not saying that nothing should be done with that child, but we do believe that whatever punishment, or whatever outcome of that child being picked up by police or authorities, is not a matter for the authorities or the police or the courts to deal with. It is really a matter for the Aboriginal community. Unless we are given the right and we are entrusted and given the opportunity to build up the mechanisms within our community to deal with these issues there is no end in sight …

If we are going to break down that system there has got to be a beginning where the Aboriginal community is able to build up the mechanisms. One of the reasons why we cannot deal with it at the moment is that we have never been given the chance and we have never been resourced, we have never been given the trust, and never really had the opportunity …

[There are] some ad hoc arrangements that take place here and elsewhere in Australia, where the department does not know what to do with our kids, when the police do not know what to do with our lads on the street, they dump them on us. Now, we try as best we can to cope with that issue, but if it was done more formally and a structure set up so the Aboriginal community can build up over a period of time our ability and our mechanisms to deal with this issue then … It does not matter which Aboriginal child is taken away from its parents, or picked up by police or the authorities, you take them to the Aboriginal community to be dealt with and you exclude the operation of the general law.

Now, there may be some limitation on that. It depends on the severity of the issues which gave rise to the child attracting the attention of the authorities ... In the next five or ten years it may well be impossible for the Aboriginal community to deal with some youth who have been involved in some very, very serious offences and so there may be limitations on the sorts of things that we deal with, but it seems to me that should not stop negotiations taking place between the Aboriginal community and governments as to where those limitations are and how the mechanisms can be built up between and within Aboriginal communities (Michael Mansell, Tasmanian Aboriginal Centre, evidence 325).

The Aboriginal Legal Service of WA recommended ‘that Local, State and Commonwealth governments facilitate the transition of identified Aboriginal communities to limited or complete self-government (or any other plan that is considered appropriate for the particular community), including any legislative reform, training, infrastructure development or provision of any other assistance that may be required’ (submission 127 page 222). Tangentyere Council (NT) called for a change in the ‘structural relationship of Aboriginal people to the State’ (Tangentyere Council submission 542 page 4).

Link-Up (NSW) drew the Inquiry’s attention to Canadian Children’s Services. ‘The destiny of Aboriginal children should be determined by Aboriginals as is the case in the Canadian First Nation Peoples Children’s Services’ (Link-Up (NSW) submission 186 page 176).

The Kimberley Land Council and Broome and Derby Working Groups (WA) both stated,

…we believe that control should be placed in the hands of Aboriginal people themselves, not government departments. Aboriginal people are in a position to assess the situation of clients and determine how best to deal with problems and can draw on their knowledge of extended families, Aboriginal tradition and culture to provide indigenous ways of dealing with crises situations (submission 345 page 28 and submission 518).

ATSIC noted that in ‘both current policies, and the development of new policies in relation to Indigenous children, governments must consolidate the principles of self-determination and empowerment’ (submission 684 page 42).

Before informed decisions can be made there needs to be proper negotiation between government and Indigenous communities and organisations relating to self-determination in juvenile justice, welfare and adoption matters. Communities must be in a position to make choices about what they see as suitable long-term solutions to particular issues. 

There are no insurmountable constitutional, legal or administrative barriers to transferring or sharing jurisdiction. The development of night patrols in Tennant Creek and Alice Springs in the NT are practical examples of Aboriginal people taking initiatives and exercising a level of control in the maintenance of law and order. They establish that core functions can be shared to the satisfaction of Indigenous people and government authorities. These are practical examples of shared jurisdiction in maintaining law and order (Dodson 1996 pages 62-63).

Funding
In 1992 the Council of Australian Governments endorsed a ‘National Commitment to Improved Outcomes in the Delivery of Programs and Services to Aboriginal Peoples and Torres Strait Islanders’. This commitment arose from an agreement by all levels of government on the need for co-ordination of delivery of programs and services to Aboriginal and Torres Strait Islander peoples. Guiding principles of this agreement are empowerment, self-determination and self-management by Aboriginal and Torres Strait Islander people. The commitment is consistent with a co-operative approach which recognises the responsibility of all levels of government for the delivery of services to Indigenous people.

States and Territories currently have responsibility for welfare and juvenile justice services to all sectors of the community. The Commonwealth has special responsibility to Indigenous people under the ‘races power’ in the Constitution and under human rights treaties ratified under the ‘external affairs power’. Shared financial responsibility for the implementation of the recommendations of this Inquiry is required to fulfil these State, Territory and Commonwealth responsibilities. The need for proper funding was endorsed by the Social Responsibilities Commission of the Anglican Church.

It will not be possible for the Australian States to implement ... minimum standards without additional funding for training and for the support of Indigenous communities. Indigenous communities may not have the necessary expertise or resources initially to fulfil their roles in arrangements giving them more direct control over services ... control over services is not a euphemism for poor quality provision (submission 525 page 11).

The provision of funding must take cognisance of the principle of self-determination. Funding arrangements have been criticised for their excessive legality and complexity, onerous reporting provisions, failure to acknowledge organisations intellectual property. Indigenous organisations wherever possible should be the decision makers or at a minimum have primary input into funding decisions.

Other human rights
Australia has ratified many international conventions which establish human rights standards to which Australia is required to conform. Indigenous people in Australia have increasingly looked to international conventions to offer protection from discrimination and promotion of human rights (Dodson 1993). 

A number of submissions called on the Inquiry to consider and incorporate the provisions of the United Nations Convention on the Rights of the Child (CROC) which was ratified by Australia in 1990. The Aboriginal Legal Service of WA noted that the Convention imposes an obligation on governments to protect the family unit, the interest of children growing up in a family where possible and the right of individuals to a family life. ‘Children, like adults, have rights to freedom from arbitrary interference with family life, freedom from arbitrary detention, liberty of the person and freedom of choice of residence’ (submission 127 page 359). 

Article 3.1 of CROC states that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. CROC envisages that it will normally be in the child’s ‘best interests’ to be brought up with his or her birth family and by both parents (articles 9 and 18). CROC also recognises a right of the child to inherit and participate in the culture(s) into which he or she was born and an obligation on the state to provide assistance where children are removed from their cultural environment (articles 8.1, 20, 29.1(c) and 30).

Article 20. 
1. 	A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
3. 	…when considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.

Article 30.
In those States in which ethnic, religious or linguistic minorities or persons of indigenous origins exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her culture, to profess and practise his or her own religion, or to use his or her own language.
 
According to the ALSWA ‘these principles create a double issue in regards to Aboriginal youth, in that they are to be protected both as children and as members of an Indigenous culture’ (submission 127 page 360).

Article 12 of CROC recognises the child’s right to have the opportunity to express his or her views in any judicial or administrative proceedings which affect him or her, provided the child is capable of forming views. The views of children should be given weight in accordance with their age and maturity.

Self-determination 
Recommendation 43a:  That the Council of Australian Governments negotiate with the Aboriginal and Torres Strait Islander Commission, the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Secretariat of National Aboriginal and Islander Child Care and the National Aboriginal and Islander Legal Services Secretariat national legislation establishing a framework for negotiations at community and regional levels for the implementation of self-determination in relation to the well-being of Indigenous children and young people (national framework legislation).
Recommendation 43b:  That the national framework legislation adopt the following principles.
1.	That the Act binds the Commonwealth and every State and Territory Government.
2.	That within the parameters of the Act Indigenous communities are free to formulate and negotiate an agreement on measures best suited to their individual needs concerning children, young people and families.
3.	That negotiated agreements will be open to revision by negotiation.
4.	That every Indigenous community is entitled to adequate funding and other resources to enable it to support and provide for families and children and to ensure that the removal of children is the option of last resort.
5.	That the human rights of Indigenous children will be ensured.
Recommendation 43c:  That the national framework legislation authorise negotiations with Indigenous communities that so desire on any or all of the following matters,
1.	the transfer of legal jurisdiction in relation to children’s welfare, care and protection, adoption and/or juvenile justice to an Indigenous community, region or representative organisation,
2.	the transfer of police, judicial and/or departmental functions to an Indigenous community, region or representative organisation,
3.	the relationship between the community, region or representative organisation and the police, court system and/or administration of the State or Territory on matters relating to children, young people and families including, where desired by the Indigenous community, region or representative organisation, policy and program development and the sharing of jurisdiction, and/or
4.	the funding and other resourcing of programs and strategies developed or agreed to by the community, region or representative organisation in relation to children, young people and families.
National minimum standards
Indigenous organisations must have a key role in policy development and program delivery and in decision-making in individual cases concerning children, whether juvenile justice, child welfare or adoption, either within a self-government framework or within the existing State or Territory legal framework. The right of Indigenous peoples to self-determination requires this.

The standing of Aboriginal and Torres Strait Islander parents, families and communities to actively participate in and shape juvenile justice programs, which have such a disproportionate impact on our children, should be beyond question (Dodson 1995 page 27).

The Royal Commission into Aboriginal Deaths in Custody stressed the need for governments and Aboriginal organisations ‘to negotiate together to devise strategies to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems’ (Recommendation 62). The Royal Commission was not prescriptive. Instead ‘a conscious decision was made not to attempt to provide a blue-print for a “perfect” system, but rather to recommend a co-operative, negotiated, community-based approach to addressing problems’ (Dodson 1996 page 200). This was also the approach of the Canadian Royal Commission on Aboriginal Peoples in relation to criminal justice issues.

The approach adopted by the Inquiry is consistent with that of the Royal Commission. We recommend negotiations for nationally binding minimum standards of treatment for Indigenous children and young people. The negotiating partners should include the Commonwealth, State and Territory Governments and peak Indigenous organisations with responsibility for families and children, the Aboriginal and Torres Strait Islander Commission (ATSIC), the Secretariat for Aboriginal and Islander Child Care (SNAICC) and the National Aboriginal and Islander Legal Services Secretariat (NAILSS), together with the Aboriginal and Torres Strait Islander Social Justice Commissioner.

The national standards legislation should be applicable to all Indigenous children whether subject to Indigenous community jurisdiction, State or Territory jurisdiction or shared jurisdiction as negotiated between the Indigenous community and the State or Territory.

In the case of children remaining under State or Territory jurisdiction or subject to shared jurisdiction, we have come to the conclusion, based on overwhelming evidence, that some provisions are essential as minima if the goals of eliminating unnecessary removals of Indigenous children from their families and communities and reversing their over-representation in child welfare and juvenile justice systems are to be achieved. Additional standards should be negotiated which are consistent with the minima recommended. Subject to the national standards legislation, individual communities, regions and representative organisations may negotiate the details of their particular relationships with the institutions of the State or Territory under Recommendation 43c.3.

The negotiation and adoption of minimum standards for juvenile justice, child welfare and adoptions applicable nationally will address the rights and needs of Indigenous children, prevent unjustified removals and provide an open framework in which Indigenous control over child welfare and juvenile justice can develop where this is desired. Minimum standards do not preclude development of higher standards in any one jurisdiction, region or community. They establish the benchmark from which particular systems can develop in ways which suit the requirements of Indigenous children and communities in different areas. This approach was advocated by the Anglican Social Responsibilities Commission.

The legislative control of child welfare and juvenile justice is in the hands of the States. The States cannot be assumed all to be of one mind, or can that mind be assumed to be of good intent. In the Social Responsibilities Commission’s [SRC] view action by the Commonwealth is necessary … Any legislation by the Commonwealth should be directed towards providing benchmarks by which State provision will be regulated (submission 525 page 10).

Under the Australian Constitution child welfare, juvenile justice and adoption have been matters within the exclusive legislative power of the States (with the Commonwealth exercising that power for the Territories until the grant of self-government). The Commonwealth’s responsibility for Indigenous children’s rights flows from Australia’s adoption of international human rights treaties. This adoption, moreover, has expanded the Commonwealth’s legislative power. Arguably the Commonwealth has constitutional power to legislate to protect Indigenous children’s well-being relying on its powers to legislate with respect to external affairs and for the people of any race (Wilkinson 1994, Nicholson 1995).

National standards for Indigenous children
Recommendation 44:  That the Council of Australian Governments negotiate with the Aboriginal and Torres Strait Islander Commission, the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Secretariat of National Aboriginal and Islander Child Care and the National Aboriginal and Islander Legal Services Secretariat national legislation binding on all levels of government and on Indigenous communities, regions or representative organisations which take legal jurisdiction for Indigenous children establishing minimum standards of treatment for all Indigenous children (national standards legislation). 
National standards for Indigenous children under State, Territory or shared jurisdiction
Recommendation 45a:  That the national standards legislation include the standards recommended below for Indigenous children under State or Territory jurisdiction or shared jurisdiction.
Recommendation 45b:  That the negotiations for national standards legislation develop a framework for the accreditation of Indigenous organisations for the purpose of performing functions prescribed by the standards.

Responsibility for children
One objective of national minimum standards is the elimination of removals of Indigenous children from their families and communities consistently, in particular, with the Convention on the Rights of the Child and the right of self-determination. The standards should ensure both the human rights of Indigenous children including the best interests principle and the right of self-determination for Indigenous peoples. The development of Indigenous law and practice in accordance with existing human rights norms is recognised in the draft Declaration on the Rights of Indigenous Peoples.

Indigenous people have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognised human rights standards (article 33).

Article 9(1) of CROC requires that state parties ensure children are not separated from their families except where separation is necessary for the best interests of the child. The Genocide Convention and the draft Declaration on the Rights of Indigenous Peoples prohibit the removal of Indigenous children from their people. ‘[E]ven where an Aboriginal child must be separated from his or her parents in the best interests of the child, that child should not be separated from his or her culture and should be placed as close to the parents as possible’ (Iorns 1996 page 6). In most cases the best interests of the child will require placement within his or her community. The right of self-determination and the elimination of removal are consistent with the requirement that the best interests of the child be served in the vast majority of cases.

Any aboriginal child growing up in Australian society today will be confronted by racism. His best weapons against entrenched prejudice are a pride in his aboriginal identity and cultural heritage, and strong support from other members of the aboriginal community. We believe that the only way in which an aboriginal child who is removed from the care of his parents can develop a strong identity and learn to cope with racism is through placement in an environment which reinforces the social and cultural values characteristic of aboriginal society. We believe that white families are unable to provide such a supportive environment (Aboriginal task group report to the First Australian Conference on Adoption 1976, relied upon by the Family Court in B and R 1995 page 605).

In the context of [high] adult mortality and high incidences of imprisonment, other social problems and a generally hostile environment we have to ensure not only that our children are taken care of, but that they also grow up with a strong belief in themselves and their people. We do this because they are the inheritors of this land, they are its guardians and we must bring them up with the same values and attitudes that we have tried to uphold (Butler 1989 page 29).

Welfare departments in all jurisdictions continue to fail Aboriginal and Torres Strait Islander children. Although they recognise the Aboriginal Child Placement Principle, they fail to consult adequately, if at all, with Indigenous families and communities and their organisations. Welfare departments frequently fail to acknowledge anything of value which Indigenous families could offer children and fail to address children’s well-being on Indigenous terms.

Aboriginal families continue to be seen as the ‘problem’, and Aboriginal children continue to be seen as potentially ‘savable’ if they can be separated from the ‘dysfunctional’ or ‘culturally deprived’ environments of their families and communities. Non-Aboriginals continue to feel that Aboriginal adults are ‘hopeless’ and cannot be changed, but Aboriginal children ‘have a chance’ (Link-Up (NSW) submission 186 page 85).

The needs of Indigenous families and communities are neglected while Indigenous children continue to be disproportionately involved with ‘the welfare’. Evidence to the Inquiry repeatedly indicated a community perception that the problems which result in removals need to be addressed in terms of community development. However, welfare departments continue to pathologise and individualise protection needs of Indigenous children. At the same time, recognition of past failures, under-resourcing and, in some instances, racist attitudes frequently result in a failure to intervene until the family crisis is of such proportions that separation is the most likely or even only possible course.

Indigenous communities throughout Australia gave evidence to the Inquiry of their need for programs and assistance to ensure the well-being of their children. Not a single submission to the Inquiry from Indigenous organisations saw intervention from welfare departments as an effective way of dealing with Indigenous child protection needs. Departments recognise that they need to provide culturally appropriate services but they fail to develop them. 

Despite changes of names from Department of Community Welfare to the Department of Community Development to the Department of Family and Children’s Services (FCS) [WA] many Aboriginal people feel that the Department has remained a welfare institution reminiscent of Native Welfare. FCS still wields statutory control over families struggling to survive. Decisions which affect the lives of children are frequently made by staff without discussion with Aboriginal families. Many people facing crises with their families will often not seek assistance from the department because of their association with ‘Welfare’ who took the children away (Kimberley Land Council submission 345 page 28).

It is not surprising, given the experiences of present and earlier welfare policy and practices, that Aboriginal perceptions of the current role of DCS [NSW] remain overwhelmingly negative. Despite the employment of Aboriginal field workers most interviewees expressed suspicion of and antipathy towards, DCS. Despite changes to policy and legislation, DCS practice remains, in the opinion of those interviewed, culturally inappropriate ( Learning from the Past 1994 page 58).

Families are concerned that any contact with FACS [SA] may result in their children being removed. Hence for programs involving the well-being of Aboriginal children to be successful, they need to be managed by and operated from Aboriginal organisations (SA ACCA submission 347 page 37). 

Evidence to the Inquiry confirms that Indigenous families perceive any contact with welfare departments as threatening the removal of their child. Families are reluctant to approach welfare departments when they need assistance. Where Indigenous services are available they are much more likely to be used.

 Standard 1: Best interests of the child – factors
Recommendation 46a:  That the national standards legislation provide that the initial presumption is that the best interest of the child is to remain within his or her Indigenous family, community and culture.
Recommendation 46b:  That the national standards legislation provide that in determining the best interests of an Indigenous child the decision maker must also consider,
1.	the need of the child to maintain contact with his or her Indigenous family, community and culture,
2.	the significance of the child’s Indigenous heritage for his or her future well-being,
3.	the views of the child and his or her family, and
4.	the advice of the appropriate accredited Indigenous organisation.
 Standard 2: When best interests are paramount
Recommendation 47:  That the national standards legislation provide that in any judicial or administrative decision affecting the care and protection, adoption or residence of an Indigenous child the best interest of the child is the paramount consideration.
 Standard 3: When other factors apply
Recommendation 48:  That the national standards legislation provide that removal of Indigenous children from their families and communities by the juvenile justice system, including for the purposes of arrest, remand in custody or sentence, is to be a last resort. An Indigenous child is not to be removed from his or her family and community unless the danger to the community as a whole outweighs the desirability of retaining the child in his or her family and community.
 Standard 4: Involvement of accredited Indigenous organisations
Recommendation 49:  That the national standards legislation provide that in any matter concerning a child the decision maker must ascertain whether the child is an Indigenous child and in every matter concerning an Indigenous child ensure that the appropriate accredited Indigenous organisation is consulted thoroughly and in good faith.  In care and protection matters that organisation must be involved in all decision making from the point of notification and at each stage of decision making thereafter including whether and if so on what grounds to seek a court order. In juvenile justice matters that organisation must be involved in all decisions at every stage including decisions about pre-trial diversion, admission to bail and conditions of bail.

In the context of family law, section 68L of the Family Law Act 1975 (Cth) authorises the Court to order a separate representative for the child or children in a parenting dispute. The Full Court of the Family Court in the 1994 case Re K set guidelines for when a child should normally have a separate representative. One circumstance is ‘where there are real issues of cultural differences’ (Lisa Young submission 816 page 8). In all cases involving Indigenous children the court must ensure that the child is represented. Representation is essential to ensure that the child’s Indigenous heritage and associated needs and interests are understood by the court and properly taken into account.

The expertise of Indigenous community-controlled organisations providing services for Indigenous families and children, notably the Aboriginal and Islander Child Care Agencies (AICCAs) has been called upon by the Family Court. Separate representatives should be alert to the existence and expertise of these organisations and would be expected to consult them in every case.

 Standard 5: Judicial decision making
Recommendation 50:  That the national standards legislation provide that in any matter concerning a child the court must ascertain whether the child is an Indigenous child and, in every case involving an Indigenous child, ensure that the child is separately represented by a representative of the child’s choosing or, where the child is incapable of choosing a representative, by the appropriate accredited Indigenous organisation.

Indigenous child placement principle
The Indigenous Child Placement Principle provides the framework for the care of Indigenous children who cannot remain with their parents. It meets both the child’s best interests and the needs of the Indigenous community.

Because of the negative attitudes towards Aborigines that still exist in our community, it is inevitable that an Aboriginal child will be subjected to racial taunts by their peers and, if that child is isolated from Aboriginal family and community supports, it is most likely that he or she will develop psychological and emotional problems ... In order to cope with these issues, and others surrounding his or her Aboriginal identity, it is of paramount importance that the child remain or be placed in an Aboriginal family, preferably the natural or extended family. The child will be with people who have experienced the problems that he or she will inevitably face and be able to address them effectively (ACCA report submitted by the separate representative and quoted by the Family Court in B and R 1995 page 597).

This approach mirrors that adopted in Britain by the National Foster Care Association in 1989.

Denying a child’s colour, being ‘colour-blind’, is not in the child’s long-term interests. It is one way in which white carers have attempted to protect themselves and the children they care for from the reality of racism. But denial makes things worse for the child, who cannot share with their white carers the offensive and damaging racist behaviour they may experience.

Becoming familiar with black people, learning about black history and achievements, and knowing the music and language of their own culture will help the children to begin to build up an inner store of self-worth of their blackness. This will help them to combat the damage done by racism. The child or young person needs direct contact with black people who are positive about their own black identity and needs positive black role models to counteract the negative images so often presented by the media (excerpted in Gaber and Aldridge 1994 page 217).
There is a great deal of variation among jurisdictions in the wording of their Aboriginal Child Placement Principles. Chisholm commended the NSW Community Welfare Act 1987 requirement that placement contrary to the ACPP must not occur unless application of the Principle would cause detriment to the child (1988). Only Victoria and SA provide statutory recognition of the role of Aboriginal organisations. Aboriginal people have noted the importance of ‘respecting law’, ‘keeping law strong’ by making correct skin placements and recognising blood ties as well as cultural ties in defining extended family and correct placements. 

Many arguments can be made in favour of entrenching the Principle and the role of AICCAs in legislation. Where procedures and policy are legislatively provided for they are more likely to be adhered to. Their implementation can be reviewed and monitored by courts. Legislative recognition facilitates standing on the part of parties who may otherwise be excluded from proceedings (for example AICCAs). Statutory recognition of a right to participate in decision making would relieve AICCAs from dependence on the goodwill of the welfare department or individual officers.

Legislation establishes a firmer and clearer foundation for lines of authority and the exercise of legitimate power (for example the demarcation of responsibilities between AICCAs and departments). It provides a sound basis for funding agencies to recognise services which require funding to fulfil functions.
 Standard 6: Indigenous Child Placement Principle
Recommendation 51a:  That the national standards legislation provide that, when an Indigenous child must be removed from his or her family, including for the purpose of adoption, the placement of the child, whether temporary or permanent, is to be made in accordance with the Indigenous Child Placement Principle. 
Recommendation 51b:  Placement is to be made according to the following order of preference,
1.	placement with a member of the child’s family (as defined by local custom and practice) in the correct relationship to the child in accordance with Aboriginal or Torres Strait Islander law,
2.	placement with a member of the child’s community in a relationship of responsibility for the child according to local custom and practice,
3.	placement with another member of the child’s community,
4.	placement with another Indigenous carer.
Recommendation 51c:  The preferred placement may be displaced where, 
1.	that placement would be detrimental to the child’s best interests,
2.	the child objects to that placement, or
3.	no carer in the preferred category is available.
Recommendation 51d:  Where placement is with a non-Indigenous carer the following principles must determine the choice of carer,
1.	family reunion is a primary objective,
2.	continuing contact with the child’s Indigenous family, community and culture must be ensured, and
3.	the carer must live in proximity to the child’s Indigenous family and community.
Recommendation 51e:  No placement of an Indigenous child is to be made except on the advice and with the recommendation of the appropriate accredited Indigenous organisation. Where the parents or the child disagree with the recommendation of the appropriate accredited Indigenous organisation, the court must determine the best interests of the child.

Adoption
Adoption for Indigenous children should be a last resort and, where it is desirable in the child’s best interests, should be within the Indigenous community except when the child’s best interests require some other placement. Culturally appropriate alternatives to adoption should be preferred. They include,
1.	custody and guardianship arrangements short of adoption,
2.	culturally appropriate counselling of prospective relinquishing parents and their families ensuring that alternatives are explored and adequate family support is offered to enable them to keep the child, and
3.	‘open adoption’ which secures continuing contact between the child and his or her parents, other family members and community.

While adoption is seen as the answer for some Aboriginal children, it certainly does not represent the total answer. Aboriginal values, culture and family life provide a very different context or texture from that of the dominant society and adoption assumed different meanings against this context. If adoption law and practice is to be responsive to the particular needs of the Aboriginal community, then it must be flexible in its application and be in harmony with their family life, culture and values. Viable alternatives to legal adoption through the white system must be available so that placement of each individual child is determined by the needs of that child and his family, rather than by the straitjacket of bureaucratic procedures (Homes for Blacks 1976 page 163 reporting the collective view of Aboriginal participants at the First Australian Conference on Adoption in 1976).

When adoption is determined to be in the child’s best interests, the child should remain in contact with his or her biological family and community. His or her cultural and native title entitlements and future rights and responsibilities may depend on the continuity of these ties. His or her spiritual and emotional well-being almost always does. ‘Open adoption’ is the most appropriate for Indigenous children (and possibly for all children). Open adoption has been variously defined.

There is no universally accepted definition of open adoption. Definitions range from ‘an adoption in which the birth parent meets the adoptive parents; relinquishes all legal, moral, and nurturing rights to the child; but retains the right to continuing contact and knowledge of the child’s whereabouts and welfare’ to ‘shar[ing] with the child why a mother would place the child for adoption’ (NSW Law Reform Commission 1994 page 53).

The first definition reflects the Inquiry’s intentions. In addition the child should retain the right to contact and knowledge of the biological family’s whereabouts. The family as a whole, and not just the natural parents, should remain in contact. ‘Family’ for these purposes must be defined according to the customs and Law of the particular Indigenous community. To protect the best interests of the child the degree of contact between child and natural family would be determined ideally by agreement between the natural and adoptive families or, failing that, by court order. The advice of the relevant Indigenous child and family service agency would be invaluable in either case.
 Standard 7: Adoption a last resort
Recommendation 52:  That the national standards legislation provide that an order for adoption of an Indigenous child is not to be made unless adoption is in the best interests of the child and that adoption of an Indigenous child be an open adoption unless the court or other decision maker is satisfied that an open adoption would not be in the best interests of the child. The terms of an open adoption order should remain reviewable at any time at the instance of any party.

Juvenile justice
The overall picture in relation to Aboriginal juvenile justice issues remains, for the most part bleak in many areas of the State … The reforms that have been made to the system have yet to make sustained inroads into rates of arrest and incarceration for Aboriginal children and young people  (ALSWA submission 127 page 333).

Minimum standards for Indigenous juvenile justice must be founded on a number of key principles and themes, many of which have been discussed above. These include,
•	legislative recognition of the need to eliminate the removal of Indigenous children and young people from their families and communities and a legislative preference for diversion of Indigenous children and young people to Indigenous bodies,
•	the need for Indigenous communities and organisations to have a key role in deciding the future of individual Indigenous children and young people who become the subject of juvenile justice intervention, and 
•	the need for Indigenous communities and organisations to have a key role in policy development and program implementation, where they desire this.

A substantial body of literature has documented the too frequent use of arrest by police when dealing with Indigenous young people (Blagg and Wilkie 1995, Luke and Cunneen 1995). Indigenous young people are more likely to be proceeded against by way of arrest than informal mechanisms such as warnings and cautions or less intrusive mechanisms such as summonses and court attendance notices. Rules 1 and 2 aim to minimise the use of arrest and to increase the use of warnings and attendance notices (see Blagg and Wilkie 1995 page 193).

There is widespread dissatisfaction with infrequent notification to Indigenous organisations when Indigenous young people are detained and questioned by police. Failure to notify Indigenous organisations such as legal services increases the likelihood of bail being refused and of children’s rights being infringed. Rule 3 requires immediate notification, Rule 4 requires that the organisation be consulted in police decision-making about whether and if so how to proceed against the young person and Rule 5 prohibits interviewing the young person unless his or her representative is present.

Rules 5-8 inclusive controlling the interrogation of Indigenous young people by police are consistent with those proposed by Blagg and Wilkie based on the Convention on the Rights of the Child (1995 pages 304-5) and with Recommendations 243 and 244 of the Royal Commission into Aboriginal Deaths in Custody. Blagg and Wilkie argued that these standards are required by CROC and should be applicable to all children and young people.

Indigenous young people are massively over-represented among young people detained in police cells. Bail refusal, inability to satisfy bail conditions, unnecessary transportation of young people from remote communities and the failure to support and utilise Indigenous alternatives to police custody are major reasons for Indigenous young people’s detention in police cells. Rules 9-12 inclusive aim to reduce the disproportionate numbers of Indigenous young people refused bail, given unrealistic bail conditions and detained in police cells. In the case of bail refusal Indigenous alternatives are to be used in preference to detention in police cells.

Juvenile justice throughout Australia is moving towards two systems based on race. It is developing into two systems for two categories of offenders: those who are minor offenders and those who are serious and/or repeat offenders. Minor offenders are channeled into the various diversionary programs such as police cautioning and conferencing schemes. Serious and repeat offenders, on the other hand, become ineligible for diversionary programs and are dealt with more punitively through sentencing regimes that are more akin to adult models and in some jurisdictions include mandatory minimum terms. The segregation of treatment for ‘minor’ and ‘serious’ juvenile offenders is occurring predominantly along racial lines.

Indigenous young people are less likely to receive non-custodial sentences and more likely to be sentenced to detention. Diversion of the young person into programs designed for Indigenous children must be the preferred sentencing option in all but the most serious cases demanding a custodial penalty. There are successful Indigenous controlled diversionary programs in various jurisdictions. However, they are limited in number, under-resourced and under-utilised by the courts. Indigenous young people who are diverted are, therefore, unlikely to benefit from programs designed and delivered by their communities. As a result they are more likely to fail to complete their sentences and to receive a custodial penalty in response to breaching their non-custodial order. The Inquiry was referred to research by the University of WA’s Crime Research Centre which noted that the effects of Aboriginal young people not receiving diversionary treatments or of ‘failing’ them are compounding. 

The courts may perceive Aboriginal youth to have ‘failed to respond’ to diversionary options such as cautioning and family group conferences and consequently ‘up-tariff’ them, that is, give them a more severe disposition than justified by the current offence alone (ALSWA submission 127 page 370).

Indigenous children and young people do not receive the same benefits of diversionary options as non-Indigenous young people. Moreover, existing diversionary options are not of Indigenous making. The diversionary options in most instances are alternatives created by the non-Indigenous juvenile justice system for non-Indigenous young people. To the extent that they extend to Indigenous young people they are imposed on them and their communities. The inevitable consequence of this process is entrenched over-representation of Indigenous young people in detention centres.

Rules 13 and 14 aim to limit the sentencing options of courts to diversion into an Indigenous non-custodial program except in the most serious cases. Rule 15 requires the court to give its reasons in writing whenever a custodial sentence is imposed on an Indigenous young person.

The existing criminal justice system, anchored in a philosophy of punishment and an architecture of imprisonment, can blind us to alternative means to achieve peace and order within a framework of justice (Canadian Royal Commission on Aboriginal Peoples 1996a page 214).

 Standard 8: Juvenile justice
Recommendation 53a:  That the national standards legislation incorporate the following rules to be followed in every matter involving an Indigenous child or young person.
Recommendation 53b: That the national standards legislation provide that evidence obtained in breach of any of the following rules is to be inadmissible against the child or young person except at the instance of the child or young person himself or herself.
Rule 1. Warnings
Arrest and charge are actions of last resort. Subject to Rule 2, a police officer is to issue a warning, without charge, to a child or young person reasonably suspected of having committed an offence without requiring the child or young person to admit the offence and without imposing any penalty or obligation on the child or young person as a condition of issuing the warning.
Rule 2. Summons, attendance notice
A child or young person may be charged with an offence when the alleged offence is an indictable offence.  The charging officer must secure the suspect’s attendance at the court hearing in relation to the charge by issuing a summons or attendance notice unless the officer has a reasonable belief that the suspect is about to commit a further indictable offence or, due to the suspect’s previous conduct, that the suspect may not comply with a summons or attendance notice.
Rule 3. Notification
When a child or young person has been arrested or detained the responsible officer must notify the appropriate accredited Indigenous organisation immediately of the fact of the arrest and make arrangements for the attendance of a representative of that organisation.
Rule 4. Consultation
The responsible officer, in accordance with Standard 4, must consult thoroughly and in good faith with the appropriate accredited Indigenous organisation as to the appropriate means of dealing with every child or young person who has been arrested or detained. 
Rule 5. Interrogation
No suspect or witness is to be interviewed in relation to an alleged offence unless,
a.	a parent or person responsible for the suspect or witness is present, unless the suspect or witness refuses to be interviewed in the presence of such a person or such a person is not reasonably available,
b.	a legal adviser chosen by the suspect or witness or, where he or she is not capable of choosing a legal adviser, a representative of the appropriate accredited Indigenous organisation is present, and
c.	an interpreter is present in every case in which the suspect or witness does not speak English as a first language.
Rule 6. Caution
No suspect or witness is to be interviewed in relation to an alleged offence unless,
a.	the caution has been explained in private to the suspect or witness by his or her legal adviser or representative,
b.	the interviewing officer has satisfied himself or herself that the suspect or witness understands the caution, and
c.	the suspect or witness freely consents to be interviewed.
Rule 7. Withdrawal of consent
The interview is to be immediately discontinued when the suspect or witness has withdrawn his or her consent.
Rule 8. Recording
Every interview must be recorded on audio tape or audiovisual tape. The tape must include the pre-interview discussions between the suspect or witness and the interviewing officer in which the officer must satisfy himself or herself that the suspect or witness understands the caution and freely consents to be interviewed.
Rule 9. Bail
Unconditional bail is a right. The right to bail without conditions can only be varied where conditions are reasonably believed due to the suspect’s past conduct to be necessary to ensure the suspect will attend court as notified. The right to bail can only be withdrawn where it is reasonably believed, due to the nature of the alleged offence or because of threats having been made by the suspect, that remand in custody is necessary in the interests of the community as a whole.
Rule 10. Bail review
The suspect has a right to have the imposition of bail conditions or the refusal of bail reviewed by a senior police officer. In every case in which the senior officer refuses to release the suspect on bail, the officer must immediately notify a magistrate, bail justice or other authorised independent person who is to conduct a bail hearing forthwith. The suspect is to be represented at that hearing by a legal adviser of his or her choice or, where incapable of choosing, by a representative of the appropriate accredited Indigenous organisation.
Rule 11. Bail hostels
When bail has been refused the suspect is to be remanded in the custody of an Indigenous bail hostel, group home or private home administered by the appropriate accredited Indigenous organisation unless this option is not available in the locality.
Rule 12. Detention in police cells
No suspect is to be confined in police cells except in extraordinary and unforeseen circumstances which prevent the utilisation of alternatives. Every suspect confined in police cells overnight is to be accompanied by an Indigenous person in a relationship of responsibility to the suspect.
Rule 13. Non-custodial sentences
Custodial sentences are an option of last resort. Every child or young person convicted of an offence who, in accordance with Rule 14 cannot be dismissed without sentence, is to be sentenced to a non-custodial program administered by the appropriate accredited Indigenous organisation or by an Indigenous community willing to accept the child. The child’s consent to be dealt with in this way is required. The selection of the appropriate program is to be made on the advice of the appropriate accredited Indigenous organisation and, where possible, the child’s family.
Rule 14. Sentencing factors
The sentencer must take into account,
a.	the best interests of the child or young person,
b.	the wishes of the child or young person’s family and community,
c.	the advice of the appropriate accredited Indigenous organisation,
d.	the principle that Indigenous children are not to be removed from their families and communities except in extraordinary circumstances, and
e.	Standard 3.
Rule 15. Custodial sentences
Where the sentencer, having taken into account all of the factors stipulated in Rule 14, determines that a custodial sentence is necessary, the sentence must be for the shortest appropriate period of time and the sentencer must provide its reasons in writing to the State or Territory Attorney General and the appropriate accredited Indigenous organisation. No child or young person is to be given an indeterminate custodial sentence or a mandatory sentence.

Commonwealth, State and Territory governments must ensure effective policy evaluation and monitoring of implementation. Particular attention should be paid to,
1.	the extent to which Indigenous children and young people are dealt with formally by police or courts in preference to referral to an Indigenous organisation for participation in a diversionary program,
2.	the extent to which Indigenous children and young people are dealt with by way of arrest in preference to summons or attendance notice,
3.	the extent to which Indigenous children and young people are held in police cells and the reasons for their detention,
4.	the extent and nature of bail refusal and bail conditions which cannot be met,
5.	the extent and nature of sentences to detention for Indigenous children and young people, and
6.	comparative recidivism rates between Indigenous children and young people sentenced to Indigenous community-based options compared to those sentenced to detention.

The results of these evaluations must be made public.

Family law
Although now more in tune with the Convention on the Rights of the Child, the Family Law Act 1975 (Cth) does not incorporate the child’s right under article 30.

In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.

The Family Court in B and R stated ‘we strongly agree with the importance to be attached to these rights’. These rights should be included among the principles underlying that Part of the Act dealing with children’s welfare. Section 60B(2) currently sets out four principles which are described as underlying the objects of the Part unless contrary to the child’s best interests. The objects of the Part are ‘to ensure children receive adequate and proper parenting to help them achieve their full potential’ and ‘to ensure that parents fulfil their duties’ (subsection 1). The four principles are,
(a)	children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)	children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)	parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)	parents should agree about the future parenting of their children.

The ‘cultural rights’ of Indigenous children should be recognised similarly in this subsection. While our recommendation refers solely to Indigenous children, it does so only because we are restrained by our terms of reference. Proper recognition of article 30 would include all children from ethnic, religious or linguistic minorities.

The Act should explicitly recognise that every Indigenous child has a need to maintain a connection with his or her Indigenous culture and heritage. Section 68F, the best interests checklist, currently invites the judge to consider whether an Indigenous child needs to maintain contact with his or her culture. In our view, the Act should direct the judge to take account of that need. Inclusion of these principles will not pre-determine a dispute in favour of the Indigenous parent since the best interests of the child remains the sole consideration.

Family law
Recommendation 54:  That the Family Law Act 1975 (Cth) be amended by,
1.	including in section 60B(2) a new paragraph (ba) ‘children of Indigenous origins have a right, in community with the other members of their group, to enjoy their own culture, profess and practice their own religion, and use their own language’, and
2.	replacing in section 68F(2)(f) the phrase ‘any need’ with the phrase ‘the need of every Aboriginal and Torres Strait Islander child’.

Endnotes
1	The Canadian Royal Commission on Aboriginal Peoples also noted that there is another group of tribal courts known as ‘traditional courts’ operating among Pueblo Indians in southwest USA. They operate under inherent tribal jurisdiction and apply customary law supplemented by tribal enactments (1996a page 183).
2	For example the proposed Kimberley Regional Agreement or the Torres Strait Regional Authority.
3	For example the developments recommended by the Queensland Legislation Review Committee and the proposed Alternative Governing Structures Program.